Will SCOTUS Let January 6 Defendants Off the Hook? | Crooked Media
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April 22, 2024
Strict Scrutiny
Will SCOTUS Let January 6 Defendants Off the Hook?

In This Episode

Melissa, Leah, and Kate recap oral arguments in cases about January 6, political corruption, malicious prosecution claims, and the right to counsel. They also break down a batch of decisions, and look ahead to how SCOTUS may address state bans on gender-affirming care.






Show Intro Mister Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.


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


Leah Litman Or the chair women, if you will.


Kate Shaw I’m Kate Shaw.


Melissa Murray I’m Melissa Murray.


Leah Litman And I’m Leah Litman. And you can hear and see Melissa roll her eyes if you’re watching us on YouTube.


Melissa Murray Anyway, I know some people have been up since the earliest hours of the morning downloading new tracks. I am rested, however, because I slept in and I am here to tell you what we have in store for you today because it is a big episode. First, we will recap the arguments in the cases that the Supreme Court heard last week. And quick spoiler the Supreme Court may be ready to blow up many of the January 6th prosecutions, including potentially two of the charges that Jack Smith filed against Donald Trump. So we will cover those developments first, and then we will briefly discuss the other arguments that the court heard last week. And after that, we are going to do a lightning round. On some recent Scotus opinions. Scotus fired off a bunch of decisions, and notably, these decisions were relatively cohesive. Coherent, not a lot of dissents. In other words, the court is at this moment donning its very, very moderate. Totally cohesive despite our many ideological differences, drag, which can only mean that we are getting closer and closer to the time when this Goblin court decides it’s going to make some very bad decisions. So don’t get lulled into a state of complacency. It is coming. Do not be fooled by these unanimous decisions. We’ll say more about that. And then finally, as is our want, we will dip into some court culture, including some shadow docket breadcrumbs that gesture toward the court’s views of the constitutionality of laws banning gender affirming care, and perhaps, maybe even giving us an idea of what the court might ultimately say about those laws when those issues arise on the merits docket.


Leah Litman And we’ll also briefly know, likely multiple times, how Taylor Swift, honest to goodness, dropped some Strict Scrutiny easter eggs on the Tortured Poets department.


Kate Shaw Right? I feel we didn’t actually make reference, for, I don’t know, the 1% of our listeners who might have missed it at the time of the show, which is we are I don’t know if we’re chairwoman or deputy chairwoman, but we were recording this episode mere hours after the release of the Torture Poets department and some of us have spent.


Melissa Murray I think everybody got that.


Kate Shaw I’m saying 1% of our listeners might not have. And it is for them that I am clarifying.


Melissa Murray I am that 1%.


Kate Shaw But as Melissa just mentioned, first up, argument recaps, and we are going to start with the January 6th case Fisher versus United States. This case involves one of the January 6th defendants. And it is also more broadly about whether the January 6th defendants were properly charged with violating a specific law 18 U.S.C. section 1512 c two, which prohibits corruptly obstructing an official proceeding.


Leah Litman The defendant and Fisher argue that the law did not apply to the January 6th defendants, because the congressional proceeding to certify presidential votes was not the kind of proceeding that the law prohibits obstructing. More particularly, the argument is that the law applies only to the sorts of proceedings that involve investigations or the collection of evidence, documents, records. But the defendant in this case, Fisher, as well as some lower court judges, had also offered different theories about why this law 1512 c two might not apply to the defendant, Mr. Fisher specifically, or some smaller subset of January 6th defendants, because they did not actually obstruct any proceeding. Since Fisher concedes that he was at the Capitol, but not at the time protesters were attempting to disrupt the certification of the Electoral College votes, but instead, after Congress had already recessed. So when we previewed the case, we weren’t sure whether the Supreme Court was going to go big in this case and blow up a bunch of January 6th cases and potentially two of the charges against Donald Trump arising out of January 6th, because the other arguments, some of which were fairly particular to the defendant and others of which might not rule out the applicability of this law to January 6th, defendants writ large, gave the court ways to go small and say something about Mr. Fisher’s case in particular. Again, who entered the Capitol after Congress had already recessed.


Melissa Murray As Leah suggested, we did not have really high hopes for how this argument was going to go. And I have to say, I think it was even more alarming than even we expected. So at least three of the justices, let’s call them the Three Horsemen of the apocalypse Clarence Thomas, Samuel Alito, Neil Gorsuch all seem to be drawn to the view that the law just doesn’t apply to January 6th full stop, because the certification of presidential votes doesn’t count as an official proceeding, or because the challenged conduct wasn’t the kind of evidence tampering that the statute, on their view, was meant to cover. Their view of all of this would undo many of the charges against many of the rank and file. January 6th defendants. Though we should say that many January 6th defendants have been charged for other crimes as well. So not everyone is off the hook entirely. But it does seem like if they’re reading of the statute prevails, it would wipe out a lot of the charges against many of these protesters and some notes. I just want to make really clear here that in this statutory interpretation exercise, our favorite textualist on the court do not seem especially interested in getting some of that good textual healing. Right? They do not seem interested in it at all. Instead, it seems that their concerns are really rooted in what the statute was intended to address. Like what was the statute purpose? Hmhm purpose of ISM takes a seat on the couch next to me, which is really surprising because I was under the impression that we were all textualist now. So color me, color me surprised.


Leah Litman Who the fuck was that guy? Like, what’s textualism.


Melissa Murray When I get that feeling. Anyway, I’m just also going to note that Justice Clarence Thomas did not show up at work the day before this oral argument. And incidentally, no one at the Supreme Court ever explained why that was the case. Although when other justices have been absent, they have given us an explanation, but nothing to see here. What is transparency? Nothing. But you better believe that. Pinpoint. George’s favorite son got his butt off the couch to show up for the January 6th defendants the very next day, as one does when your wife has been shown to send text messages to Mark Meadows. Anyway, Justice Thomas wasn’t going to miss the chance to let this go unspoken by him, so maybe his absence the day before was simply an attempt to hydrate and limber up so that he could be in full fighting form for the Fisher argument.


Kate Shaw And he sure was. First question out of the gate, referring to the January 6th defendants or the January 6th events as a protest to protesters. I mean, it was really something for him to have been absent without explanation, which, as Melissa was suggesting other justices say why when they miss a sitting, it’s like pretty standard practice. And he’s so contemptuous of pretty standard practice. And then to return and just hit the ground running. It really just felt like I mean.


Melissa Murray Kate, to his credit, to just say Harlan Crow’s plane was delayed and so I couldn’t get there. My bad.


Leah Litman He couldn’t say I was engaged in consulting services and wasn’t able to make it.


Kate Shaw All right. Yeah, so you guys probably spent a lot of time speculating about where he was, but he did return, you know, in fighting form to the bench on Tuesday and again, together with Justice Alito and Justice Gorsuch, seemed really inclined to vote against the government. And for Mr. Fisher. So that’s three. Then there were two other justices, the chief justice and his, fanboy slash personal assistant. I mean, maybe call him the deputy chairman or deputy chief. Also seemed pretty hostile to the government’s interpretation of the law, although to me at least, it wasn’t clear as to these two whether and how they might embrace a narrower theory of 1512 C two rather than the government’s interpretation of the law. So it’s possible they would go with the three Horsemen, Thomas, Alito and Gorsuch, to say the law doesn’t apply because this wasn’t the kind of proceeding Congress contemplated when it drafted the law. That purpose of ISM, Melissa was just talking about. Another narrowing theory might focus on the defendant’s state of mind. That is what the government has to prove about their mental state or intent during the obstruction. And that would turn on what the word in the statute corruptly means. The concurring opinion in the case below, when the D.C. circuit said corruptly requires proof that the defendant knew that they were obtaining an unlawful benefit and that was the defendant’s purpose. But the government said that corruptly actually isn’t limited to those precise circumstances. So those are all ways that potentially those two, again, the chief and Kavanaugh could join the Three Horsemen and rule in favor of Mr. Fisher. But I also think it’s possible that the government ultimately does get their votes. I really wasn’t totally sure where they were. And if it does, I think that is going to be entirely attributable to the superb oral argument of Solicitor General Elizabeth Prelogar.


Melissa Murray Is it ironic that these guys are going to determine the meaning of the term corruptly, and it’s going to make the whole difference in this case, like.


Leah Litman I mean, and this wasn’t the only corruption case on their docket this week. This is what they’re fixated on. They are the ones to determine like what is corrupt under current law. And this is what we were alluding to last week when we said, like these issues, these cases keep arising and somehow some people delude themselves into thinking, and this will be the one where it’s all going to be on the level. And we should just trust them to approach this in completely principled ways and know.


Melissa Murray Karma is a justice. Bringing the law down on me. Anyway. Okay, so zooming out there very well could be five votes to reject the government’s theory of criminal liability here, and that would undo some uncertain number of January 6th charges here. And it would also throw into doubt two of the four federal charges against former President Donald Trump in Jack Smith’s federal January 6th election interference case. So again, more to see here. Watch this space.


Leah Litman And there were, I think, a few notable moments in the argument we wanted to highlight, some of which underscore the ecosystem the justices inhabit and the worldviews that are informing their adjudication of these cases. So we’ll start with Neil Gorsuch, who seemed to prove that Sam Alito is not the only Fox News grandpa on the court, and that if you want to understand the justices, you also need to watch Fox News to understand, like what is being pelted at them day in, day out and what is on their minds. So here is Neil floating out. Just some hypos.


Clip If I might. So. So what? What does that mean for the breadth of this statute? Would a sit in that disrupts a trial for access to a federal courthouse qualify? Would a heckler in today’s audience qualify or at the state of the Union address? Would pulling a fire alarm, before a vote qualify for 20 years in federal prison?


Leah Litman And again, if you’re like, where is he getting this? This is Neil Gorsuch asking about Representative Jamaal Bowman pulling a fire alarm to delay a vote and whether that violates the law. He’s also maybe asking about whether Marjorie Taylor Greene, Joe Wilson, who heckled Obama or Sam Alito could be thrown in jail for violating this law, as well as hecklers at the state of the Union. And also just wanted to underscore the false equivalencies between a sit in on one hand and January 6th on the other, like when people are sitting in in order to protest some law or some court proceeding. They’re not bringing zip ties and threatening violence against the people in the proceeding. And both Justice Kagan and Solicitor General Prelogar attempted to get at some of these differences, and they just completely bulldoze past them like, oh, these things are totally the same. You know, you mentioned Justice Thomas referring to this as a protest. Justice Gorsuch being like, oh yeah, what about sit ins? It was wild to me. You know.


Kate Shaw They’re positing an equivalence. Absolutely. Like that was in their questions. Even though Alito at one point tried to suggest he wasn’t. They all were.


Melissa Murray Well, I mean, I’m going to be fair to Sam Alito here, because I think there was a moment where he might have been persuaded by the government’s theory of the case, and that was specifically when he asked a hypothetical about protests at the Supreme Court itself and whether that was the disruption of an official proceeding. So let’s hear that clip.


Clip Well, general, let me give you a specific example, which is picks up, provides a little bit more detail with respect to one of the the examples that Justice Gorsuch provided. So we’ve had a number of protests in the courtroom. Let’s say that today, while you’re arguing or Mr. Green is arguing, five people get up one after the other, and they shout, either keep the January 6th insurrectionists in jail or free the January 6th Patriots. And as a result of this, our police officers have to remove them forcibly from the courtroom. And let’s say we have two delays the proceeding for five minutes. And I know that experienced advocates like you and Mr. Green are not going to be flustered by that. But, you know, in another case, an advocate might lose his or her train of thought and not provide the best argument. So would that be a violation of 1512 C too?


Melissa Murray Not really sure how this hypo cuts, because on the one hand, he seems like I would really like to throw these protesters in jail under section C2.


Leah Litman Me personally. Like he wants to jail them.


Melissa Murray  He personally, Sam Alito. But then on the other hand, he was like, but the peaceful protesters of January 6th, that would be a bridge too far to criminalize their conduct. I mean, I personally I find it very humanizing when the justices really seem to wrestle with the differing consequences of their ideological commitment. So I found this exchange really interesting, maybe even a little heart warming.


Leah Litman You know, Melissa, you like Taylor always, right? The worst men the best. That was truly a very sympathetic reconstruction of what was going on with Sam here.


Melissa Murray I just want it to be known, like in this age where we are lacking in ideological diversity, we give Sam Alito his due every single time.


Leah Litman Yeah, we. We get him, we do.


Melissa Murray We get him.


Kate Shaw Is he the smallest man on earth?


Leah Litman He’s definitely, I think he’s in the run he’s in the running. But you know, this fixation on Sam Alito wanting to unleash penalties on people who are protesting or criticizing the Supreme Court has now come up repeatedly this term. Right. Because you threw out the hypotheticals about how about I get the Scotus public information office just to call up and yell at people who say things I don’t like about the Supreme Court? And now he’s like, well, how about we throw people in jail who protest the Supreme Court? And this is just so clearly front of mind for him. The fact that people are saying mean things about him.


Melissa Murray This is definitely frontal lobe material.


Leah Litman Yes. For sure, for sure. And the exchange about, well, could this law, this theory, potentially allow people who protest the Supreme Court to be thrown in jail, led to this exchange between Justice Alito and Solicitor General Prelogar that we wanted to highlight.


Clip I could imagine defendants in that scenario suggesting that they thought they had some protected free speech, right to protest. They might say that they weren’t conscious of the fact that they weren’t allowed to make that kind of brief protest in the court. And I think it’s in a fundamentally different posture than if they had stormed into this courtroom, overrun the Supreme Court, police required the justices and other participants to flee for their safety and done so with clear evidence. And then, absolutely. What happened on January 6th was very, very serious. And I’m not equating this with that.


Leah Litman I wanted to highlight this one because I think you can literally hear Sam Alito gagging and choking on the words. January 6th was very, very serious. Like it’s like he knew he had to say it, but he didn’t want to.


Melissa Murray Well, it reminded me of the mifepristone case where he had to concede that obviously article three is very important. Can we play that? I just want to hear it, I love hearing it.


Kate Shaw Yeah.


Clip I understand that and article three is important. So your argument.


Again. This should be a t shirt. Say what you want. I think it’s great that Justice Alito and all of us can at least agree on these baseline premises. Like and with these points of agreement, where else can we go with more opportunities to engage?


Kate Shaw I know she just a Prelogar does these like triple axels around him. And then he’s like okay fine. Article three and. You know, maybe I should get.


Leah Litman  Fine. January 6th was serious. Fine.


Kate Shaw Yeah, yeah, yeah. But also, in addition to the mifepristone case I was reminded in that exchange that we just played of another Alito – Prelogar exchange from NFIB versus OSHA, which is what we tend to refer to as the I’m not saying what I’m saying exchange. So let’s play that clip here.


Clip All right. So it’s different in that respect. And here’s another respect in which it may be different. and I don’t want to be misunderstood in making this point because I’m not saying the vaccines are unsafe. The FDA has approved them. It’s found that they’re safe. It’s said that the benefits greatly outweigh the risks. I’m not contesting that in any way. I don’t want to be misunderstood. I’m sure I will be misunderstood. I just want to emphasize I’m not making that point. But is it not the case that this, these vaccines and every other vaccine of which I’m aware, and many other medications had benefits and they also have risks, and that some people who are vaccinated and some people who take medication that is highly beneficial will suffer adverse consequences. Is that not true of these, the vaccines? And if that is true, is that true?


Clip That can be true. But of course there is far, far greater risk from being. But there are there is orders of magnitude. There is some risk. Do you dispute that? There can be a very minimal risk with respect to some individuals. But but again, I would emphasize that I think that there would be no basis to think that these FDA approved and authorized vaccines are not safe and effective. I’m not making that point. I tried to make it as clear as I could. I’m not making that point. I’m not making that point. I’m not making that point. There is a risk, right?


Melissa Murray That’s a deep cut Kate. That’s a really deep cut.


Kate Shaw But all three are in the same spirit.


Melissa Murray Our one trick pony works his trick. He really does.


Kate Shaw Yeah.


Melissa Murray Sure does. Yeah. All right. Just to underscore some of the dynamics here at the court and with repeat advocates, we should note that because this argument happened on a day that ends in a why Sam Alito once again tried to play gotcha with Solicitor General Prelogar tried again to use her words against her, and once again she bested him. Which raises the question, is Sam Alito secretly a communist? Because it seems that he doesn’t mind being publicly owned?


Leah Litman Time and time again.


Melissa Murray Yeah. Let’s roll the tape.


Clip I was struck by the, the contrast between your argument here that the court should read, in a minimal exception with the argument that you made earlier this term in. Muldrow versus the city of Saint Louis, where the question was whether, an adverse employment action has to be significant or not. And you said, no, it doesn’t have to be significant because, quote, the text likewise admits of no distinction between discrimination that results in a significant or insignificant disadvantage. So in Muldrow, you told us, no, don’t read in, in a textual, requirement of significance. But here you seem to be arguing, yes, you’ve got a read and a textual requirement of something that’s more than minimal.


Clip No, that is not our argument here. We are grounding this in the text, that we’re not suggesting that there’s a basic de minimis principle that applies throughout all the various legal, statutes that are out there, not anything like that. Instead, we ground this in a particular understanding of what it means to obstruct and what that word conveys.


Kate Shaw Yeah, she I mean, he kept trying to Bester and she just kept, again, like, dancing away.


They say the definition of insanity is, you know, doing the same thing time and time again.


Melissa Murray And it’s such wily coyote energy.


Kate Shaw Yeah, yeah.


Melissa Murray She’s like the roadrunner.


Kate Shaw Yeah, I am not. But honestly, I’m not really upset about it.


Leah Litman No. Me either.


Melissa Murray Yeah. No


Kate Shaw Always results in the same.


Melissa Murray And he keeps owning himself.


Alito zero. Prelogar one.


Melissa Murray Every time it’s a self own. Over and over.


Kate Shaw I know, I know. So moving on to some of Alito’s fellow travelers. Barrett also may have revealed a Fox News habit of her own in addition to Alito, which we knew and met Gorsuch, who seemed to be, giving some hints during this argument, or at least I thought so with her invocation of the phrase stop the steal. So let’s play that clip here.


Clip Okay, let me ask you a question. That kind of gets at some of the same points that Justice Alito’s questions were getting at. So what if on January 6th, the Capitol itself had not been breached? The protest is going on outside the Capitol. Stop the steal, stop the steal. Police or you know, and megaphones saying disperse, disperse! They’re too close to the Capitol. Their goal is to impair, impede, stop the proceeding, stop the counting of votes. Does that violate the statute in your view, under this impede language?


Kate Shaw I don’t know, am I wrong that I mean, the government does not use that phrase. In its brief, it appears. Very like once, I think, in Fischer’s brief, but it did like seemed to roll off the tongue. It is not like it was the only time she had said this.


Leah Litman It is MAGA forward. It is kind of in the ethos like this has been bandied about in so many places just to describe the efforts to overturn the 2020 election. I mean, I agree, it did seem to like roll off the tongue in a certain way. But I wasn’t exactly sure how to read it.


Melissa Murray I’m going to need more. I need more from.


Leah Litman Yeah.


Kate Shaw Okay. All right. Suggestive that’s all.


Melissa Murray  It’s suggestive, but not determinative.


Leah Litman Yeah.


Melissa Murray So quite a lot was made of the fact that, quote, this statute hasn’t been used in cases that didn’t involve the destruction of records and quote, and I’m going to just note that it’s not entirely clear that that’s actually true. But, as we know, there is a deeply rooted history and tradition of getting history and traditions wrong at this court. So all of this checks out. But to give you an example of what we’re talking about here is Justice Thomas’s opening question to Solicitor General Prelogar.


Clip General. And there have been many violent protests that have interfered with, proceedings as the government, applied this provision to other protests in the past. And has this been the government’s position throughout the lifespan of the statue?


Melissa Murray And then Sonia Sotomayor stepped in to pre but all of this in an exchange with the petitioner’s lawyer. So here she is.


Clip We’ve never had a situation before where there’s been a situation like this with people attempting to stop a proceeding violently. So I’m not sure what a lack of history proves.


Melissa Murray All to say that Sonia Sotomayor is over history and tradition, and wants everyone to know that the United States doesn’t actually have a history and tradition of coups. So continue.


Leah Litman Yeah. So maybe we can just kind of talk loosely about predictions at this point. I agree it was a little bit hard to read, particularly the Chief Kavanaugh Barrett where they were leaning. I think it’s possible, you know, there was kind of a narrower ground thrown out and about an argument that maybe the Supreme Court would say something about how they weren’t adopting the government’s broader interpretation of the law, but would say something like 1512 C-2 charges require some showing about records or whatnot, and allow the government to argue that obstructing the January 6th certification involved interfering with electoral certificates. The defendant resisted this reading, saying certificates aren’t evidence in the hearing sense, but it’s possible this theory could mean that while many rank and file January 6th ers didn’t violate the law, Trump may have since Trump was involved in generating the fake electors slate. But if that is the theory, figuring that out is going to create additional delays pretrial with pretrial briefing. And so that’s just another kind of aspect to note about the case.


Kate Shaw And in terms of my sort of big takeaway is I agree with everything you just said, Leah. I and you know, Melissa, you alluded to this earlier. It is just it was so hard to swallow. You know, I was like, can have an aneurysm listening to this argument with these self-identified textualist. And all they wanted to talk about was how the preceding provision, C one, impacted the meaning of the words of C2, or how the Sarbanes Oxley Enron scandal origins of the statute had to inform the meaning of the statute, and almost didn’t seem to maybe treat it as an afterthought. The words of the statute itself, which just was so galling. Oh, I guess there’s one other thing they cared about whether the application of the statute in other cases might raise First Amendment or related concerns. But again, that’s not about the text of the statute.


Leah Litman And can I just say one thing about the like, text? So yeah, they were so fixated on this word otherwise that appears in 1512 C2. And just to underscore to our listeners like why that isn’t textualist. So the justices were like, well, 1512 C2 says otherwise. And so that must incorporate the reference to evidence and records from C1. But C2 is a separate section. So that’s one thing. And second is reading. Otherwise, to incorporate some set of similarities with C1 inevitably devolves into assessments of purpose, because it requires the judge to ask, well, how are the things in C1 similar? Or like what similarity was Congress trying to get at? Because one possibility is they just cared about obstruction by other means. Another possibility is they cared about the destruction of evidence or records. And in order to make that determination, the judge is going to have to think about like, what was Congress trying to do?


Kate Shaw Totally. And Prelogar just, I thought had a beautiful description of what these two different parts of the statute did. The first one is about records and documents. The second one says otherwise obstructs or interferes with an official proceeding. Those are targeting different kinds of conduct. Like that should be the end of the analysis. And none of the textual things on the court seemed to be that interested in that theory. Although, again, I ultimately think there is a chance that she prevails. And I just wanted to maybe highlight one other thing. Leah, you just said this, but, you know, this is something. Melissa’s colleague at NYU, Ryan Goodman, has highlighted even if Fisher wins, it is totally possible that wouldn’t impact Trump at all. As a bottom line matter, with respect to these two charges against Trump, because the evidence against him is really different than the evidence against Fisher in that it’s not just about January 6th itself, but all of this involvement in the fake elector scheme and trying to induce and facilitate fake electors and fake certificates. And even if they do decide to impose some document requirement on T2, that’s just not you know, it’s very possible the evidence against Trump could satisfy it. But timing is everything, and it could well mean that you have to build a new the case under C two. And I don’t know at that point whether Jack Smith and his team would decide it’s better just to pursue the other two charges if there is even a time for a trial.


Melissa Murray I mean, I think they’re probably already thinking of that right now to streamline this case, if they even get the opportunity to go to trial. Given that, it seems that there is a very good chance that the Supreme Court does not just affirm this conviction and follow the most natural textualist reading of the statute. We just wanted to note that the outcome here seems to be very different from the court’s treatment of other kinds of protest, and we are thinking specifically of the case involving DeRay McKesson. DeRay McKesson is an activist and organizer who’s been involved in the Black Lives Matter movement for more than a decade. He is also the host of Crooked’s Pod Save the People podcast, and he helped organize a protest near police headquarters in Louisiana after the police murdered Alton Sterling, who was shot six times. Despite being pinned to the ground.


Kate Shaw During this protest, someone and we do not know who threw a rock. The rock struck a police officer, severely injuring him, and the officer sued McKesson for inciting a riot. McKesson organized the protest, but certainly didn’t throw the rock, doesn’t know who threw the rock and did not ask anyone to throw the rock. And so McKesson raised First Amendment defenses. The defense he raised primarily relied on the Supreme Court’s previous decision in NAACP versus Claiborne, which is an important 1982 decision in which business owners sued the NAACP for organizing a boycott of white businesses, and the business owner said that threats of violence against their businesses had cost them money. But the threats were from other people, not from the NAACP and the Supreme Court in that case said the First Amendment barred these claims against the NAACP. And still the police officer pressed these negligence claims against DeRay McKesson. And, most gallingly, the lower courts have allowed these claims to continue without the Supreme Court lifting a finger. At an earlier stage of this litigation, the Supreme Court sent the case to the Fifth Circuit, saying that the Fifth Circuit needed to clarify Louisiana tort law. Louisiana state courts purported to do that and said, yep, this claim can proceed, and the Fifth Circuit declined to dismiss the case so that under the Fifth Circuit’s ruling, it is set to move forward.


Leah Litman And the Supreme Court declined to disturb that ruling, almost as if they are saying, like some mass protests are good and others aren’t.


Melissa Murray I mean Leah, we have never had a history and tradition in this country of Black Lives Matter. So, you know, yeah.


Leah Litman That does seem to be a possible distinction. And it’s part of what, to me makes the justices invocations of the parade of horribles about the government’s theory under 1512 C2 so hollow and in some respects just disingenuous, because right now people are using laws against black protesters and you, Supreme Court, are doing jack squat about it, and instead you’re raising the prospect of the government using this law against sit ins and nonviolent protests as a reason to excuse criminal liability for the January 6th attempted insurrection. And again, like the dual treatment is quite striking. Now, we should say that Justice Sotomayor issued a statement in DeRay McKesson case saying that the legal issue here, that is, whether DeRay McKesson can be sued consistent with the First Amendment, is already clear. And she said the court can deny certiorari that is declined to intervene for many reasons, including that the law is not in need of further clarification. And she suggested that the Supreme Court’s recent decision and counterman versus Colorado on First Amendment and the true threats kind of already resolve this issue. But still, the Supreme Court not stepping in to end the case now prolongs it. It requires more legal fees and time, all of which is a deterrent to protesters and organizers. Whatever the ultimate outcome in Jerry’s case, ultimately is.


Leah Litman [AD]


Melissa Murray Up next at Corruption Week at the Supreme Court is Snyder versus United States. The political corruption case about the law, section 666, that criminalizes corruptly soliciting or demanding or accepting or agreeing to accept anything of value that exceeds $5,000, that is intended to influence or reward any business transaction of an organization or government that receives federal funds. As we forecasted in our preview, the tenor of the oral argument suggested that the court seems inclined, perhaps even unanimously, to narrow the reach of this law. And it will perhaps say that unless there are some kind of quid pro quo agreement, that is where there was an offer of money or reward that is explicitly tied to the commission of some official act, then there can be no violation of this law, and there’s some chance that they adopt some other limitation on this. But it’s clear, at least to us, that they’re not just going to affirm this conviction because this is a case that involves political corruption, and that’s just not how they roll. These days.


Kate Shaw Say no more. Well, you know, just to delve a bit more into the details of the statute, that is definitely the bottom line. But here are the facts. So this case involved a mayor who allegedly structured a bidding process to ensure a trucking contract would go to a particular company, Peterbilt. And then the company turned around and hired the mayor for quote unquote consulting services. Checks out and normal? No, I mean, that’s what the court basically said. The federal government to the contrary, said these kinds of arrangements that involve these rewards, sometimes called gratuities or tips, violate federal law if they are done to influence behavior or sweeten the pot, things like that.


Leah Litman I’m sorry, I just got on my sorry and keep talking and all, but to consider whether to offer this intervention later, I was like, I just realized the defendant is pressing the quote, just the tip theory of federal government and corruption. I just I can’t get that out of my head now. I’m sorry. Sorry. I’m sorry. I’m sorry to everyone. I’ve been listening to the Tortured Poets department for, like, endless hours. My mind is not well.


Kate Shaw I think it’s working great. I think that was great.


Melissa Murray How many hours of Cowboy Carter do I need to listen to get that out of my head? Leah. Like, seriously. What the fuck?


Leah Litman Sorry.


Melissa Murray Okay.


Kate Shaw All right. Onward. So the federal government says that these kinds of rewards, gratuities, tips violate federal law if they’re done to influence behavior. And the defendant says no, these are just basically indistinguishable from thank you’s. You get a bottle of wine or a thank you gift for a doctor after a successful surgery. Which sidebar? Like who throughout the argument was this notion that everyone is giving enormous, lavish gifts to like, the people in their lives who they pay for things like medical care. And I mean, like, we give gifts to, like, research assistants and, like, friends and family members and like, doormen stingy on the on the gift front, of course, like holiday gifts, people in our lives who are in all kinds of relationships with us. But the idea that that it is sort of standard operating procedure.


Melissa Murray I do not give my dentist holiday gift .


Kate Shaw To give $1,000.


Leah Litman Thousand dollars.


Kate Shaw Or a thousand bottle of wine was invoked like a normal thing to give as a gift anyway.


Melissa Murray Well, I was interesting because Justice Alito, it was like it was very definitely not thousand dollar wine. I know. Remember that.


Kate Shaw That was a call back. I thought at least at least that’s what made me think of I know, I know. But in any event, what the justices seemed to be suggesting is that this is completely ordinary behavior. And the fact that this kind of completely ordinary behavior might be subject to some kind of threat of prosecution was an intolerable, you know, I don’t know, constitutional concern. Obviously, this case was predicated on statutory interpretation as opposed to some standalone constitutional theory, but, you know, concerns about the implications, broadly speaking, of allowing these kinds of prosecutions to go forward permeated the argument. And there was zero concern voiced by a single justice on the bench for the kinds of cases that a narrow interpretation of the law might just let off the hook. So that’s, I think, where things left off with the argument. So maybe just to play a handful of clips, here’s Justice Kavanaugh with a hypothetical along the lines that we were just talking about.


Clip Well, you’re counsel, you’re changing the hypothetical, the hypotheticals, the actions taken. And a citizen gives a thank you. And it could be, a gift card to Starbucks, or it could be, tickets to a concert game and just drops it off to the person. Thank you for all your hard work on this issue. Appreciate you.


Leah Litman Now, Lisa Blatt was arguing for the defendant, the petitioner in this case, which means we were treated to the Lisa Blatt Show in the course of trotting out the possible downstream consequences of the government’s broader interpretation of the law. So step right up, listeners, because we’re about to play the Lisa Blatt game or show, with this series of clips.


Clip The doctor who removes your wart, fine. But the doctor who takes your gallbladder out, or does your face like my plastic surgeon? No, that’s worth over 5000. Well, not seriously. I’m not even joking. Snow removal is worth over 5000. Writing a letter for your kid to get into college. That’s priceless. There are. I could go on and on and on. And if you charge again, I’m sure you will ask them what the jury should be charged. What common sense ethical rules are? I mean, the restaurant example alone. I don’t know where it’s. I’m pretty sure Chipotle would be okay and a little Washington wouldn’t. But ask him about the Cheesecake Factory.


Clip Well, I’m not going to ask him about the Cheesecake Factory. Somebody else may. Okay, but but I’m going to ask.


Melissa Murray I’ll be here all week. Like that was chaotic.


Leah Litman Yes.


Melissa Murray Like side note, do we believe that Justice Gorsuch regularly goes to the Cheesecake Factory? I mean, like, first of all, like, full disclosure, I’m sorry if this sounds snobby, but I fucking hate The Cheesecake Factory. Like, I do not understand.


Leah Litman I love The Cheesecake Factory.


Melissa Murray Okay, you and my husband can go together because I fucking hate it. Like I do not understand a restaurant with a menu that is so varied that it actually has to be spiral bound. Like that seems excessive to me. Like, absolutely excessive. Like.


Kate Shaw It’s enormous. It’s a big, big menu.


Melissa Murray But so seriously, is Neil Gorsuch like a basic restaurant bitch.


Leah Litman No, I think this was just drawn from Lisa’s hypotheticals. I don’t think he was invoking The Cheesecake Factory in particular, but.


Kate Shaw She was invoking back to the like, I don’t know what world these people live in the like the invocation of the Inn at Little Washington, which is like a preposterously expensive DC area restaurant.


Melissa Murray Yes. In the same sentence as Chipotle and The Cheesecake Factory


Kate Shaw I know, but also just like, hey, we all know what The Inn at Little Washington is like that I like really irked me, but I digress.


Leah Litman So just to kind of take this home, it is clear where the court is leaning and they are leaning that way against the government because of their apparent sense that the facts of this case are just kind of how we do things indistinguishable from scenarios that they think just can’t and shouldn’t warrant prosecution. Which came out in this clip that we’ve already alluded to. And so we’ll just play here.


Clip Well, how about this? I mean, this statute applies to more than government officials and applies to pretty much every hospital. It applies to pretty much every university. So let’s say billionaire patient comes to a hospital and gets extra special treatment. He gets appointments when nobody else would get it. He gets surgery scheduled when nobody else would. And, and it’s all done because everybody knows he’s a billionaire patient, and they’re hoping that he’ll give an eight figure gift to the hospital. How about that? Does that fit? So it needs to be a we walk through the statutory requirements. The they there needs to be the acceptance or the solicitation of money in connection with a particular business. And they’re definitely going to accept the eight figure gift when it comes. Oh, sorry. Are you talking about there on the promise of this eight figure gift? Well, a lot of people, Stan. A lot of people do not think it’s good to give super rich people better health care than not so super rich people. So I could see a jury saying, that’s pretty immoral. But probably every hospital in America does it.


Leah Litman It was just really interesting to hear probably every hospital in America does it. And that that was their understanding of the way things work.


Kate Shaw And just like business as usual.


Melissa Murray Well, I mean, this goes back to your point, Kate. Most of these cases dealing with political corruption are unanimous or nearly unanimous.


Kate Shaw So this is, I think, where this one is likely headed. Yeah.


Melissa Murray I mean, I think I like the idea that everyone is doing this, like even the liberal justices seem to accept that.


Kate Shaw Yeah. I mean, I think it’s deeply disheartening. I don’t even think it’s true. But I think it it’s likely to embolden this kind of conduct. Right. Like all kinds of sketchy behavior, because it’s increasingly clear to officials and private individuals that most of what they do is going to be beyond the reach of federal criminal law. And I do think the result of that will be government services. And, you know, 666 can also reach the provision of private services by recipients of federal funds. So by all kinds of entities that can, you know, dole out their goods and services on a preferential basis is what the court seems to be saying happens and is fine and just doesn’t that obviously lead to kind of further stratification and a more profoundly distorted vision of democracy? I feel like that is the path that this court in this line of cases is on. And I just find it incredibly disturbing, writ large. But as to this particular case, it’s very clear this anti corruption statute is going to be narrowed and possible unanimously.


Leah Litman So briefly, we’re just going to mention two other cases that the court heard argument in. One was Chia Virginia versus city of Napoleon. This is the Fourth Amendment case. We weren’t able to preview at our last episode, because we were attempting to give you a sense of the court’s power by taking through a bunch of cases the court would be hearing throughout this entire sitting.


Melissa Murray This particular case is about how an individual can make out a claim of malicious prosecution when they are charged with multiple offenses. So a malicious prosecution claim argues, as the name suggests, that you were charged, i.e. prosecuted maliciously, not because you actually violated the law. But the twist in this case is how a malicious prosecution claim works when you’re charged with. With one offense for which there is no probable cause i.e. there’s no reasonable belief that you committed the offense. The prosecutors charge you with. But you’re also charged with some other offenses for which there is probable cause. So sort of malicious prosecution on the one hand, but maybe you actually did the other thing and. So confusing.


Leah Litman Yeah. So Isha Anand of Stanford Supreme Court Litigation Clinic was arguing the case for the petitioner and was fabulous, as she has been in all of her arguments this year, her first year arguing at the court. And it seems like this is going to be at least, I thought, another win for her. Recall she got a unanimous win in the first case she argued this term. Murray. The Court of Appeals below in this case seemed to say that as long as there is probable cause for one of the charged offenses, you can’t make out a malicious prosecution claim. And Isha was arguing for a different rule that you can make out a malicious prosecution claim if there wasn’t probable cause for a charged offense, and that resulted in a seizure of your possession.


Kate Shaw Yeah, I mean, she also just had really good rapport with all the justices. I was like, they’re she’s gonna fix them. They’re gonna they’re going to come out reasonable.


Leah Litman I can fix him. I know I can.


Kate Shaw Exactly.


Leah Litman Except the end of this, she can’t.


Kate Shaw Yeah. Okay. Well, hope springs eternal, and she can’t fix these guys either. It’s a bad. It’s not like there is a maybe, as in this case, though, in terms of how she pitched it, she pitched it as one in which there was radical agreement, which echoed a decision the court issued the previous week in sheets, which we’re going to talk about in a little bit. She was supported by the lawyer for the federal government, who agreed that the court below was wrong, and the fight seemed to be about what else the court might say in this case. The Solicitor General seemed to want the Supreme Court to say a little bit more than the petitioner did. So, you know, the government wanted the court to say the petitioner is required to show that malicious prosecution caused the seizure, although if the government didn’t want the court to elaborate on how to establish causation or make rules for what happens if there is an uncharged offense or different variations.


Melissa Murray Understandably, the respondent’s lawyer here really tried to resist the suggestion that there was radical agreement on these issues. But I think if we had to guess, it seems like Isha is headed for another win, and the Supreme Court will say that it’s not a defense to a malicious prosecution claim to charge someone with other offenses for which there might be probable cause, and it will leave a lot of the details to be worked out down the road. But it will be, I think, a win for Aisha and for this defendant.


Kate Shaw And maybe let’s just play her closing here, which lays out the stakes, that even though those stakes might seem small, given the agreement now, that is actually a misimpression. And she makes that clear here.


Clip This court can do a lot of good by just resolving the question presented and saying that, that the any crime rule, as Justice Gorsuch said, you can always come up with some crime for which there’s probable cause. And so the crime rule allows police officers to entirely insulate their misconduct by just tacking on a charge, for which there is probably probable cause for just about anyone. This court can do a lot of good by just saying that that rule is incorrect, that a plaintiff can make out a malicious prosecution claim, even if some charges are supported by probable cause. And we’ll fight about all the complexities that Your Honor’s heard about on remand. Thank you.


Leah Litman All right the court also heard Thornell versus Jones. And this is an important Sixth Amendment right to counsel case. And we didn’t have time to preview it in the last episode. But Kate did allude to it briefly. So in order to establish a violation of the Sixth Amendment right to effective assistance of counsel, defendants have to show deficient performance, that is, their counsel performed below an objective standard. And then they also have to show that there was prejudice, which means that there’s a reasonable probability that their counsel’s deficient performance actually affected the proceedings.


Kate Shaw And this case is about how courts determine prejudice and how appellate courts review district courts determinations about whether there’s prejudice here. The Ninth Circuit concluded that the district court errored by requiring defendants to effectively establish mitigating factors by a preponderance of the evidence, and to show that it’s more likely than not that the outcome of the sentencing proceeding would have been different, even though that’s not how the prejudice standard is supposed to or typically understood to work. And there was a somewhat testy exchange on how to read the district court opinion and whether the Ninth Circuit interpreted it correctly along these lines. Let’s play that here.


Clip Did the district Court ever say that it was applying a preponderance of the evidence standard? No, Your Honor.


Clip Is it a reasonable understanding of their opinion to think that it was doing fact finding in the normal way?


Leah Litman This, brought to my mind the kind of exchange between them from Alexander earlier in the term, where they were disputing how to read Justice Kagan’s opinion. Cooper. Exactly. But, you know, here in this particular Sixth Amendment case, the state says the Court of appeals, the Ninth Circuit, did not properly consider the aggravating factors when it determined that defendant was prejudice. And this is a habeas case out of the Ninth Circuit where the habeas petitioner, the defendant, won. So, you know, the safe bet is this will probably end poorly now that it is at the Supreme Court. And the question seems to be how much the court is going to say about what district court should do on the prejudice prong. I like how much harder. Are going to make it to establish a six amendment violation versus focusing on a narrow error of omission by the Court of Appeals, namely, not considering the aggravating factors.




Melissa Murray Now for a lightning round of opinion recaps. First up, we got the opinion in sheets versus El Dorado County, and this was a unanimous opinion holding that the Takings Clause doctrine doesn’t have a firm cut off between legislative and administrative land use permit conditions. And this was an opinion written by Justice Amy Coney Barrett where there were three concurrence, and it was a very narrow resolution of the case. By the time the case got to the court, the parties had agreed on the fact that legislative permit conditions were not completely immune from takings challenges. And this clip from arguments indicates where they were going on that front. Here it goes.


Clip I think you’re right about all that, that, you know, whether this is a tax. It’s a really interesting question. Whether it’s a user fee is a really interesting question. But as I read the Court of Appeals below, they said, we’re not even going to get into any of that because Nolan and Dolan simply doesn’t apply to legislative enactments of any kind, whether it’s a tax, whether it’s a fee, whether it’s something else. And I thought we had taken the case to address that question. And as the Chief justice has pointed out, I think there’s radical agreement on that question today. I think if you and so why wouldn’t what would be wrong with allowing both sides to go back and make their arguments, recognizing that Nolan and Dolan does apply to some legislative enactments. And then we can you can go back to the courts below and talk about whether this is a tax, whether it’s a user fee or whether it isn’t, but that there’s just no categorical exemption from legislative enactments.


Melissa Murray Radical agreement.


Leah Litman Yeah.


Kate Shaw All right. We also got the opinion in Macquarie Infrastructure Corp versus Moab Partners. The court held there that pure omissions are not actionable securities fraud in violation of Securities and Exchange Commission regulations. Here, the company had allegedly failed to discuss a regulation by U.N. International Maritime Organization that cap the sulfur content of fuel oil. The company didn’t discuss the impact of the rule in its public offering documents, and this was a unanimous opinion by Justice Sotomayor. Again, as Melissa alluded to at the beginning of our episode, the court really seems to be in the posture of clearing the decks, getting the uncontroversial and mostly unanimous opinions out before the crazy really begins.


Melissa Murray Assume the position, gentlemen.


Leah Litman Oh, dear.


Kate Shaw Everyone’s spicy today.


Leah Litman Yeah. So we also got the opinion in Bissonnette versus Le Page Bakeries, Park Street. And it was a unanimous win for Jennifer Bennett of Gupta Wessler on behalf of employees in a federal Arbitration Act case. That is huge. You know, the Federal Arbitration Act makes it difficult for workers to challenge arbitration agreements in their employment contracts. And the Supreme Court has generally been very aggressive in expansively reading the FAA to make it hard for people to challenge arbitration agreements. But here, the Supreme Court agreed with Bennett’s clients that the Federal Arbitration Act exemptions for any class of workers engaged in foreign or interstate commerce, end quote, applies to workers whose jobs involve transportation, even if they do not work in the transportation industry. So here the employees transported food items, and so the group of employees, they are not subject to the FAA’s rules, making it hard to challenge arbitration agreements. And this case, this win follows Bennett’s previous wins in Federal Arbitration Act cases in Saxon and New Prime, which were cited in the short opinion in Bissonnette to explain the outcome, which I thought was a really nice capstone and a testament to what Bennett has been strategizing and able to do for employees seeking civil justice.


Kate Shaw That’s substantive. And it was so great. Why was the chief this is completely superficial, but the chief asked Pre Lager about this opinion in the Fisher argument and was like pronouncing it like it’s boys and boys in. Anyway, it was really weird. I don’t think said that’s hard to say.


Leah Litman Wise men once read fake news and they believed it. That’s a lyric.


Kate Shaw I don’t know what song? You’re so much more versed already than I am.


Melissa Murray I’m just hoping someone will ask me for my safe word.


Kate Shaw I actually have a question which is that Leah I know you speed read and write, but how is it possible to listen to music faster than anyone else?


Leah Litman Oh, I just start it nonstop at 6 a.m. and it’s just going and no one can talk to me.


Kate Shaw Okay, so you’ve had like eight hours ish of listening to it by now. Okay. All right. That explains it a bit. I thought you had some weird. You bent time in some way. Okay. All right, Melissa, we’re concluding this Taylor conversation. Let’s move on.


Melissa Murray So we also got the opinion and Rudisill versus McDonough. And with all due respect to the lightning rod, I am going to say a little bit more about this because I think the shakeout is really interesting here. So in this opinion, the court held that service members who accrue educational benefits under two versions of the GI Bill, the Montgomery GI Bill and the post 911 GI Bill can use both sets of educational benefits, not, as the federal government had previously argued, only one of the two sets of benefits. So this was a 7 to 2 opinion written by Justice Jackson in which she cited the social. Called pro veteran canon, and this is a canon of statutory interpretation that instructs courts to favor the rights and benefits of veterans when interpreting ambiguities in federal law. As Justice Jackson explained in the opinion, quote, if the statute were ambiguous, the pro veteran cannon would favor Rudisill but the statute is clear. So we resolve this case based on statutory text alone and quote a real textual healer here. But you might wonder if that statutory text is clear on its face. Why did she need to big up the veterans cannon here? And well, we think her choices might be explained by some of the separate writings. In this case, there was a concurrence by Coach slash Justice Kavanaugh that Justice Barrett joined, as well as a dissent from Justice Thomas in which Justice Alito joined. And in both of these separate writings, the four justices seemed less tethered to the veterans cannon. Indeed, Coach Kavanaugh noted that there might be, quote, constitutional questions about the justifications for a benefits related cannon, such as the veterans cannon that favors one particular group over others. End quote. He then went on to observe that quote the judiciary’s role is to neutrally interpret those statutes, not to put a thumb on the scale in favor of or against any particular group, end quote.


Leah Litman The major questions doctrine would like a word, sir, but go on, Queen.


Melissa Murray Oh, I’m glad you raise this. I wanted to flag these separate writings to underscore one that for Republican appointees Thomas, Alito, Kavanaugh, and Barrett wrote or signed on to separate opinions that would sideline the veterans cannon and make it harder for veterans to take advantage of the full scope of educational benefits to which they are entitled. And again, this is the Patriotic Party of America people. So, like it’s really interesting that they are on board for this. Also interesting here is that this limitation of the veterans cannon could easily apply to other statutory canons, and I could totally see the line here. The judiciary’s role is to neutrally interpret those statutes being deployed to gut Chevron and relentless and Loper. Right, and no Kavanaugh sighting himself or something like that.


Kate Shaw So I just cannot believe these major question enthusiasts can say this stuff with a straight face.


Melissa Murray They’re so, so inconsistent. Yeah, yeah, like absolutely inconsistent.


Leah Litman Completely unsurprising. Like they will continue to step on their soapbox about how they are the only people engaged in principled textualism, notwithstanding everything they are doing in major questions cases, notwithstanding what they were saying in Fisher. It’s just.


Kate Shaw Yeah.


Leah Litman Yeah.


Melissa Murray Anyway.


Kate Shaw Yeah. It’s outrageous. Yeah. All right. But because we have other cases to get through, let’s press on. So another opinion we got was devil Yay versus Texas. And in this case, the Supreme Court ducked a question about whether the Takings Clause provides a cause of action that allows plaintiffs to sue if they say they haven’t received just compensation for taking. And the justices said they didn’t have to resolve that question because Texas law authorizes those suits for takings without compensation. This was a unanimous Thomas opinion. And although the Supreme Court ruled for the petitioner, that is, the party other than Texas and vacated decision that had supported a judgment for Texas, for some reason, Attorney General Ken Paxton took to Twitter to proclaim that this was a win for Texas. Literally, quote, win. Today we secured a unanimous nine zero win at the US Supreme Court. Not on the top ten of the most insane and outrageous things Ken Paxton has done in his career in, in, you know, public service. But that was so weird.


Leah Litman Yeah. No, just like the. Why are you saying this bald faced lie? Like, it’s just ridiculous. But proceeding on with the lightning round, we also got the opinion in Monroe versus City of Saint Louis. This is a case we’ve talked about before on the show. It is the case about challenging employment transfer decisions. In the case, the court held that an employee who challenges a transfer decision under title seven must show that the transfer negatively affected them or caused some harm to the terms and conditions of their employment, but that the harm need not be significant. The lower courts, the Supreme Court said, had held that employees have to show a materially significant disadvantage from a transfer. This was a opinion by Justice Kagan that was effectively 6 to 3, although the three justices not with the six, agreed with the bottom line result of sending the case back down to the lower courts. There were separate writings concurring opinions by Justices Thomas, Alito, and Kavanaugh. Justice Alito wrote, quote, I do not join the court’s unhelpful opinion, just the smallest man. Such a day last year. Yeah, you know.


Kate Shaw Whatever, whatever’s going on with him and Kagan right now, it is getting worse. It just it it seems obvious to me.


Leah Litman It is. And a part of me makes me think whether he is not getting what he wants in some of the bigger cases, and that is producing some friction. So if that happens, I feel like the. These were the indications of that. But you know we’ll see.


Kate Shaw Well that’s an optimistic gloss but it is amazing.


Leah Litman It is the most. Right. The other one is that she’s criticizing him, which of course, we know he can’t handle. And so that could also explain some.


Melissa Murray And then the third is just he’s an abject misogynist.


Leah Litman Right. Yes. No. And any of these three could all be contributing.


Kate Shaw Why not all three?


Leah Litman All three? Yeah. So this was a win for the employee and petitioner. We wanted to, you know, offer congratulations to Brian Wolfman of the Georgetown Appellate Immersion Clinic. Who had, you know, argued the case. The petitioner had argued for a standard that employees don’t have to show any harm beyond the transfer. And the Supreme Court didn’t go there, but instead went with, you know, they have to show some harm. And at least having listened to the argument and talked about this with you all, I think that is likely because this was the case where some justices had indicated they were interested in exploring possible implications of the case for Dei programs, and specifically whether they could use this case as a Trojan horse to bring them down. You know, that was kind of what Justices Alito and some others had been floating at argument, and that appears to have been warded off or at least put off for another day. By the way, the Justice Kagan wrote this opinion. Yeah.


Melissa Murray I was going to say, like, hats off to Justice Kagan. This actually reminded me of when she dissented from the majority opinion in Ramos back in 2020. And was it 2020? I forgot they all I think it was 19 or 20.


Kate Shaw Yeah.


Melissa Murray So one of the one of those terms, but, you know, that was a case where the question there was the non unanimous jury rule in Louisiana and the majority wrote this very long opinion about using racist origins as a justification for departing from starry decisis. And I think she immediately sort of saw the connection to row and was like, nope. And joined Alito and the chief, to maintain the precedent and to uphold the rule. And so, you know, she does, I think, sort of see the long view in a lot of cases. And I think this here, I mean, it would have been very easy to go with the no harm standard and instead by inserting it, she I think, cabins this opinion in a really important way and safeguards Dei initiatives going forward. And to that point, the NAACP Legal Defense Fund issued this statement, which sought to preempt any prospect that Muldrow might be used to gut workplace Dei measures by emphasizing the narrowness of the decision, as they wrote, contrary to what some have claimed, this decision does not directly implicate programs that create diversity, equity, inclusion and accessibility idea. Unlike the discriminatory transfer at issue in Muldrow DEIA programs generally do not rely on race to determine the terms and conditions of employment and, quote. The NAACP statement called this, quote, an important victory for workers across the nation, ensuring that title seven protections against racial discrimination are fairly applied. End quote.


Kate Shaw So good result, deftly constructed opinion by Justice Kagan. I mean, will she be able to control its potential future distortion by her evil colleagues? Probably not. But.


Melissa Murray For a couple of years.


Leah Litman Yeah, exactly. DEIA live.


Kate Shaw Not for lack of trying. No. That’s true. One more opinion. In the lightning round, the Supreme Court decided Mackintosh versus United States. A case holding that a district court’s failure to enter a preliminary order before sentencing, as contemplated by federal criminal rules about forfeiture, does not preclude forfeiture later on. And this was another unanimous Sotomayor opinion.


Melissa Murray So we’re done with the lightning round. Now it’s time to bring the thunder because it’s cart culture time. Exactly. We’re so excited because there’s a lot of court culture to dig into. And the first thing we want to get into is something that we actually found to be a quite alarming development. So we’re going to talk a little bit about Idaho’s ban on gender affirming care. And this got before the Supreme Court, recently through the shadow docket. And the court made a decision that allows Idaho to enforce its ban on gender affirming care for minors. As to everyone but the plaintiffs who challenged the law. And again, the court did this on the shadow docket. It granted Idaho’s request for a stay of the lower court decision that enjoined the care ban after finding it unconstitutional. And I’m just going to say, maybe the court’s going to start making its bad decisions right now because this was a really bad decision. Yeah, it doesn’t definitively say the court’s views on the merits of this case, i.e., about whether laws like the one in Idaho are constitutional. And most of the separate writings were devoted to fighting about the court’s use of the shadow docket and whether the injunction in this case should be treated as a universal or nationwide injunction. For context about the fighting over whether or not this was a nationwide injunction, it was an injunction issued by an Idaho district court. Idaho only has one judicial district, and that district covers the whole state, and the district court for the entire state of Idaho invalidated this particular state law on a pre enforcement challenge. In that sense, it’s fairly anodyne relief, the kind of relief that you typically expect in most. So I’m not sure what the fight about the nationwide injunction was about, but they decided to have that fight anyway. So again, this is a court that’s going to have lots of fights about lots of things, even when they’re not obviously on deck. Any particular case?


Kate Shaw Yeah. And as Melissa mentioned, you know, this ruling does not definitively indicate how the Supreme Court will ultimately rule. It still does send a pretty strong signal. And that’s in part because I think this is sort of implicit in some of what you just said. Melissa, the concerns about nationwide injunctions are just aren’t present in this case, despite some of the justices efforts to insist that they were. Again, there’s a district court. Its injunction just covered a state invalidating a state law. And this case involved a pre enforcement challenge. So there were not concerns about a lower court wiping a law off the books all of a sudden, which some of the justices have voiced by way of concerns about these injunctions. Rather the Supreme Court you know here disrupted the status quo in allowing this law to go into effect and didn’t really have any basis to criticize the district court for doing that because the law was not in effect in the first place. And as this passage from Justice Gorsuch, his opinion suggests, quote, likewise, this court has held that there’s always a public interest in prompt execution of the law, absent a showing of its unconstitutionality. And that’s really scary and concerning given the rash of care bans targeting the trans community, particularly trans minors. And just to maybe say one more word about the Gorsuch writing and why it’s so concerning. Obviously there was a showing of unconstitutionality, the district court that took a very careful look at this law before it went into effect, concluded based on liberty and equality principles, that this law obviously violated the rights of these kids and their parents, who were the plaintiffs in this lawsuit. And Gorsuch is clearly signaling he’s not substantively, constitutionally concerned about the statute going into effect. And that is really terrifying.


Leah Litman Yeah. Someone needs to send him the “Leave trans kids alone, you freaks” t-shirt from the Crooked store. So the vote in this case at the Idaho case was probably 6-3, although technically the chief justice did not indicate his vote. The dissenters, of course, were the Democratic appointees. Justice Kagan noted she would deny the application. Justice Jackson, joined by Justice Sotomayor, wrote to explain the denial. Justice Gorsuch, as Kate was noting, issued a concurring opinion that was joined by Justices Thomas and Alito. You know, the Three Horsemen. And then Justice Kavanaugh, joined by Justice Barrett, also did the same kind of explaining why they granted this day. And it did, you know, the same hemming and hawing about what is the status quo that Justice Barrett had done in her SB4 concurrence, even though, again, in this context, it’s kind of clear what the status quo is because it’s a pre-enforcement challenge to a state law. And then, I don’t know, I read this and I was very annoyed both by the Kavanaugh writing and the Gorsuch writing. And the Kavanaugh writing had this line where he’s like, I fully agree with Justice Barrett’s important insight that the Supreme Court should consider a cert worthiness in assessing whether someone has made a likely showing of success on the merits. And it’s just like Brett, like she’s smarter than you. You know, you don’t need to say she made a good point. Like, everyone knows, she’s smarter than you. And I don’t know it. Just that little bit annoyed there and then the Gorsuch writing did what I have, like, repeatedly just been so annoyed by, which is it conflates and equates like the injunction against the Idaho law here with the injunctions and murthy, the social media case, the Jawboning case and the stone case, Hippocratic medicine saying like, oh, well, this court granted emergency relief in those cases, you know, where lower courts had enjoined the federal government from literally talking to social media companies and had yanked an approved drug off the market. So, sure, we can do so here. And just like the false equivalency is, that is their language and the decision making register in which they traffic, and it’s just so annoying.


Melissa Murray Some other court culture, this time from Arizona, where the Republicans continue to block any effort to repeal the 1864 abortion ban, which I guess we could also equate to the Republicans allow the face eating leopards to eat their own faces over and over again. So you all will recall that in the wake of the Arizona Supreme Court’s absolutely horrific decision to allow the enforcement of an 1864 ban on abortion, many Arizona Republicans seemed to be really opposed to the enforcement of this law, perhaps recognizing that politically, this was a devastating thing to do for their party’s prospects in the upcoming election. Again, sensing that resuscitating a zombie law that was passed at a time when women could not vote in the age of consent was 12, these were not the makings of great politics. Even the national Republican Party had tried to distance itself from all of this nonsense, with many prominent Republicans, including Donald Trump and Senate candidate Kari Lake, signaling their disagreement with the court’s decision allowing the 1864 ban to be enforced.


Leah Litman Even though like this is just so maddening because Kari Lake had been seemingly singing the praises of this 1864 law just last year and the year before. Or to pick a fucking lane lady. And Donald Trump appointed the justices who cleared the way for the Arizona Supreme Court to revive this 1864 complete total abortion ban. Like they own this. This is what you did.


Melissa Murray But Lisa, consistency is only for Democrats. So, you know, they were for it before they were against it or against it before they were for it. Yet anyway, despite all of these entreaties to save themselves politically, the Arizona GOP would much rather party like it’s 1899 or even 1799, in this case. So it’s very hard to tell the state legislature, which is very narrowly divided. But where the Republicans have a slight majority, very tellingly decided to beat back a Democratic led effort to repeal the 1864 law, like the Democrats were trying to help Arizonans out generally, but it would have helped the Republicans. And they were like, no, no, no, we actually want this zombie.


Kate Shaw We want to hurt everyone, women and ourselves.


Leah Litman Yeah. And just to underscore that, like, they literally blocked an effort to hold a vote, right? Like the perfect encapsulation of how this Dobbs line of like returning the issue to the political process and the state legislatures is just a joke because, like, they will bulldoze through democracy if democracy stands in the way.


Melissa Murray We only want democracy that is actually anti-democratic, like gerrymandered democracy and.


Leah Litman And democracy with a subordinate women. Yeah. And, you know, as you were alluding to, like, the decision to leave this law in place, like, might be good for electoral politics, for Democrats in the sense that it seems likely that the move will activate progressive voters in this swing state. But it is absolutely awful for pregnant people in Arizona who have to live under a law that literally allows for no exceptions unless a pregnant person’s life is in danger. A medical assessment that can be second guessed by law enforcement. You know, just this past week, the Associated Press did a story about some of the people who miscarried in the lobby restroom of an ER after they were refused admission. Or, you know, the woman who learned that her fetus had no heartbeat. And, you know, the day after a security guard turned her away from the facility, a woman who gave birth in a car after an E.R. like wouldn’t offer an ultrasound like. And the baby later died like that is what the Republicans in Arizona are like. Yes, that is our status quo.


Kate Shaw And the harrowing details of that AP piece. I mean, people really should read it because it just it’s one absolutely horrifying account after the next. And that is what this has enabled.


Melissa Murray Another piece to read about all of the meshuganas that’s happening in Arizona is an op ed written in the LA Times by Arizona State University law professor Caitlin Marlatt. She’s an assistant professor at Arizona State, and she’s currently pregnant right now. And she talks about how this is a high-risk pregnancy for her and the genuine fear that she feels right now living in a state where the only prospect for an abortion if something goes wrong is someone recognizes that it’s a threat to her life, and that that may be a very sort of shifting calculus depending on the timing of things. It’s a really terrific op ed, a really interesting perspective that we don’t always get from the legal academy. So applause to you, Caitlin, for what is a very personal and courageous writing.


Kate Shaw Yeah, shout out to Caitlin for that. And also just a terrific up and coming scholar. Everyone should you and I on.


Leah Litman Whose work we’ve mentioned on the show before.


Melissa Murray Yeah. Yes.


Leah Litman And finally, because no court culture segment is complete without some mention of the Fifth Circuit, we need to cover Judge Jim Hobbs audition for the next terrible, horrible, no good, very bad Supreme Court justice. And this audition came in the form of a speech to the Midland County Bar Association, which, of course, he allowed, Volokh Conspiracy blogger to republish, because this is what federal judges do these days. The speeches about judge shopping and why it’s good, actually, or at least why the Judicial Conference was wrong to try and take Matthew Case out of the business of being chief everything for the United States. So why don’t we just tick through a few highlights?


Melissa Murray Okay, I’ll go first. Here’s one that I actually love. This is a statement from Judge Ho in his audition slash speech quote. But lately, some critics of the judiciary have chosen to bemoan, rather than celebrate, the fact that many Americans across the country are served by a single local federal district judge and, quote.


Leah Litman Talk about false equivalency is like, oh my goodness.


Melissa Murray Those elites with all of their different district court judges in a big district like the Southern District of New York, just laughing at us down in Amarillo. Like, whatever.


Kate Shaw Some of us. There’s just there’s just one garden scene in which we can be painted with some of our closest friends. It’s not like an enormously expansive garden. There’s just one. There’s just one fountain to perch in front of. And that, the painting.


Melissa Murray Here’s my this. Okay, okay. Can I do another.


Leah Litman Yes, please. Please.


Melissa Murray Quote I spend many of my weekends in a small one stoplight town in Texas. We have just one supermarket in that town. Now, do I immediately assume that’s something illegal? Or untoward has happened just because there’s only one supermarket end quote, supermarkets are not federal courts like what the fuck.


Kate Shaw Also the liberals the liberals the liberals. Want to make our supermarkets illegal, is what he seems to be saying.


Leah Litman I really thought that this was his audition for a Harlan Crow funded, like, biopic about him, where he would say, I’m from, regular stuff. I like the RVs right in the parking lots, you know, so they could play that line again.


Melissa Murray I parked my RV at H-e-b and I just bought one supermarket in my small Texas town. I lived in Dallas. Like, is when is Dallas a small Texas town? Okay. Can I do one final one, please? Please. Okay. All right, all right. So. Quote. Look, I get what the critics are doing. This isn’t about forum shopping. It’s about forum shaming. It’s about shaming judges who won’t distort their rulings to do their bidding while rewarding those judges who do. End quote. Like.


Leah Litman Those words do both start with s. So good job. But you know.


Kate Shaw So he doesn’t just go after the judicial conference, he decides to go after the chief Justice. Of course, in that speech again, I guess that’s part of the audition tape. But I was pretty startled.


Melissa Murray Okay, read it Kate.


Kate Shaw Okay, okay, okay.


Leah Litman It’s also important to say what he went after the Chief Justice for doing.


Kate Shaw Let me read it and then I’ll explain. So, quote, many of us thought it was strange when, back in 2018, the chief justice criticized a sitting president of the United States for criticizing a federal judge. Close quote. So what Ho was referring to here is Chief Justice Roberts, back in 2018, actually went after then President Trump after Trump lashed out at a district court judge in San Francisco who had ruled against his asylum policy. And he called that judge, a, quote, Obama judge. And then someone called John Roberts and asked for a quote. What do you think about the sitting president attacking judges for ruling against him? And Roberts issued a very rare statement, basically saying there are no Obama judges or Trump judges. We just have all these federal judges working hard, trying to do their level best. And, you know, it was for a sitting chief justice, a pretty sharp rebuke of a president. And you know who’s mad about that rebuke six years later will not let it stand. Jim Ho really, really trying to audition for a potential future President Trump and, you know, trying to make sure that if there’s a vacancy that he’s the next he’s appointed to the Supreme Court.


Melissa Murray It’s a great audition, right?


Leah Litman It was.


Melissa Murray It was a great audition.


Leah Litman And he was like, lights, camera, bitch. Smile. I am ready.


Melissa Murray For. I mean, truly, I think if Donald Trump wins the presidency, Justice Ho is not a foregone conclusion.


Kate Shaw But even if there’s no vacancy, right? No legislation. Just put him on there and, you know, see who’s going to stop him. Oh, God, I can’t believe I said that. What if he does it?


Leah Litman All right, let’s let’s let’s end this.


Kate Shaw On a very somber note. Before we go, just one issue, a reminder. We are out of time to talk substantively about any of these cases, but we have an enormous week of arguments coming up. This includes arguments about whether states can prevent emergency rooms from providing appropriate care to pregnant patients who are in extreme distress. And also, the court is going to consider whether the president is absolutely immune and can never be prosecuted, no matter what horrific crimes he commits. And, you know, and we’re talking about possible prosecution after he has left office. So we will be watching and listening to all of that alternating. At least a couple of us will be between those horror shows and the tortured poets department. And we will feel will identify connections between the two, and bring all of this to you in our next episode.


Leah Litman And that is a great segue. This is the final call to submit questions or topics of discussion for the Grab Bag episode. We are going to be holding Strict Scrutiny office hours, where we answer your questions and discuss topics of your choosing. So please submit the questions today and we will do our best to listen to them. And I just want to say thank you to all of the listeners who have pointed out that Taylor Swift is indeed a strict scrutiny listener for releasing a track called Cassandra in which, you know, the lyrics are literally so they killed Cassandra first because she feared the worst and tried to tell the town. So they filled my cell with snakes. I regret to say, do you believe me now? Like this is literally about being Cassandra.


Melissa Murray Us.


Leah Litman Exactly. And, so I’ll just, you know, offer it once more. A Taylor Swift invitation still stands to come on the podcast.


Melissa Murray We know you listen, girl.


Leah Litman Exactly


Melissa Murray We know you’re listening.


Leah Litman Exactly.


Melissa Murray Don’t make us beg.


Leah Litman But I will.


Melissa Murray She will.


Kate Shaw It’s true. We’lC beg.


Leah Litman A better woman would be above begging. But I am not.


Melissa Murray Also, if you are in the market for some excellent merch, you should know that book bands are on the rise and it’s on us to fight back. And you can fight back by going to the Crooked store where there is a flash sale on all free the Books merchandise, so take a look at it. Free the books, tees sweatshirts and magnets are 30% off, but the sale won’t last long. So make like a conservative who just found out that your local library has a book with a gay character and run on over there and jump on it. All right, get on that sale. Head to Crooked.com/store to shop before the sale ends.


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 Raul. Audio support from Kyle Sagan and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. And if you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.


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