Strict Scrutiny - 2020 Bingo Card

Episode Date: June 22, 2020

Leah and Melissa are joined by special guest Chase Strangio for a big recap episode of a big week. They cover some developments on the orders list and two major decisions (the Title VII decision and the DACA decision). Follow us on Instagram, Twitter, Threads, and Bluesky

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. Welcome back to Strict Scrutiny, a podcast so fierce it's fatal in fact. I'm Melissa Murray. And I'm Leah Littman.

And we are so excited to recap the latest opinions from the court this week, and we are doing so with a very special guest. Leah, do you want to introduce the person we have in the studio today? I almost feel like this guest needs no introduction, given that he is one of the major players and originators and geniuses behind one of the cases we are going to be talking about, Bostock versus Clayton County. And that person is Chase Strangio of the ACLU. Welcome to the show, Chase. Thank you so much for having me. We're really excited that you're here. And we're really excited about this show because it seems like for once we have some really exciting and interesting developments that we are genuinely excited to talk about.

And I'm not sure that we are mentally equipped and or maybe I'm not mentally equipped to be communicating this amount of joy as it relates to the Supreme Court. So here's a rundown of today's show. So first, we're going to recap some of the developments in the court's orders list. And that actually is pretty substantive and meaningful. So that's going to be a big part of the show. And then we'll turn to the meat of the show recapping this week's opinions. And of course, this week's opinions were some really important ones. So we're going to talk about the title seven case, Bostock, and then we'll turn to the DACA case. And then to round things out,

we will discuss, as always, court culture. And in particular, this week, we are going to highlight an episode that really exemplifies the importance of strong allyship as well as speaking out and standing in your truth. So Leah, do you want to turn to the breaking developments from the court? Yes. So this is the point in the court's term where we're all eagerly anticipating decisions on the cases that have already been argued. But as we're waiting for opinions, the upcoming term is taking shape and the court is deciding what cases it will hear and which cases it will not hear. And there were two significant decisions on this orders list about cases and issues that the court is not going to hear that we wanted to cover. One of them was a series of Second Amendment cases involving a variety of gun control

restrictions. The Supreme Court denied 10 petitions involving Second Amendment claims. Listeners will recall that the Supreme Court ended up dismissing the Second Amendment case on its docket this term, the New York State Rifle and Pistol Association, or as Kate calls it. Nice. Serpa. Exactly. The snake in the grass. So the court ended up dismissing that case as moot. And some of the justices issued opinions saying that they thought the court should soon take the opportunity, issued a dissent from that denial, saying that he thought that in light of lower courts, quote, resisting decisions in Heller and McDonald,

the court should take up this issue and do so soon. So this was a really big deal. So there were 10 cert petitions dealing with some issue involving the Second Amendment, whether it was public carry laws or limitations on licensing. And in fact, there was actually a circuit split in one circumstance. I think this was about the handgun limitations for licensing. And usually that's an opportunity for the court to step in and clarify if there are two circuits that have divided on a particular issue. But here, we did not get cert on any of those cases. So 10 Second Amendment petitions. And as our listeners know, it only requires four votes to grant cert. So what

do we think was going on here? Because we definitely know that there are probably four people who would like to see a Second Amendment case that would further expand the scope of the court's jurisprudence in this area. A part of me wonders if, so it's clear that obviously Kavanaugh and Thomas wanted to grant cert. I would be somewhat surprised if Justice Gorsuch didn't as well, given that he was part of the NYSERPA dissent, which asked the court to take up this issue soon. I wonder if the holdout or uncertain vote is Justice Alito. And I, well, okay, hear me out, hear me out. Not because Sam has turned a leaf and become the woke Alito that we know he could be,

but instead because he is concerned about, let's say, the wobblediness of the fifth vote, the chief, in light of some of the developments this last week. We saw in particular the vehement nastiness that came out in his dissent in the Title VII case. And I think a real sense that he feels personally betrayed somehow by the chief and Justice Gorsuch. And I wonder if he is waiting to cast that vote until he either gets a better sense about what the chief justice is going to do, or until there's a different lineup on the court. I think that's interesting. It would be really

interesting to think of Justice Alito withholding his vote on a cert petition because he was worried about these other things. What do you think, Chase? Is Leah right? It's interesting when you say it, Leah, I'm convinced, although that would require some sort of measured thought from Alito that was assessing sort of human behavior. And he seems so not measured. I mean, I think that it seemed to me that it was the wobbliness of the fifth vote would be the reason for not granting. I didn't know that it would come from Alito necessarily. At least we know that the four votes are at least for cert aren't there. At least maybe they're waiting for some better case. Although I don't know what would be better than some of the cases that were presented, but they're definitely not taking

this. My take personally is that they don't want the Second Amendment anywhere near what the court is doing as November and the 2020 election comes around, which is interesting, too. But I also think, you know, in trying to avoid the political fray, they may actually fuel the president's interest in ginning up his base. And we have seen this just over the course of this week as he has railed against the court. One of the things that keeps recurring in his tweets is this idea of we need a Supreme Court with justices who are committed to securing your Second Amendment rights. So if they avoided these cases because of electoral politics, I'm not sure that it really worked. It's really interesting you suggest that because, of course, that would mean one of the four,

which we're speculating might include Justice Alito or Justice Gorsuch, is taking that into account. And it was, again, in Justice Alito's extremely nasty Title VII opinion, as well as in Justice Thomas's dissenting opinion in the DACA case, which Justice Alito joined, in which they were accusing the majority of bending to political and electoral concerns, right, which they suggested were illegitimate. And so that's just, you know, we don't know what's going on, but not going to be on the court's docket anytime soon. I did think the language of resisting was interesting, in part because we have oftentimes heard conservative legal commentators decrying the so-called legal resistance, which means any attempt to hold the administration accountable to slash to the law. But anyways, anything else about Second Amendment? All I want to do is bang, bang, bang.

No. Look, that was a TLDR of the Thomas dissent, neither here nor there. Justice Thomas, also very active on the orders list on another issue, qualified immunity. As we've also talked about on the podcast, the court had a batch of petitions in which it was being asked to overrule or limit the doctrine of qualified immunity. Justice Thomas had previously expressed some interest in revisiting that doctrine, and he alone expressed that same interest again, once again, in a dissent from denial of certiorari in a batch of cert petitions on qualified immunity. So I think this was actually really significant. And again, I think there were seven qualified immunity petitions that they could have granted cert on. And I actually think that part of what's going on here is that there is actually

movement on this question. There are a couple of bills that are pending in Congress. I don't know that any of them has a chance of getting out of Congress and onto the president's desk. But there does seem to be movement in the political branches. And I think maybe the court decided to stay out of the fray in order to let the democratic process play out on that issue. Yeah, that could very well be. I believe it was some Republican legislature referred to any bills that contain restrictions or eliminations of qualified immunity as a, quote, poison pill that would never pass. So it's unlikely that that would clear the Republican Senate in the time being. possibility of judicial action. And even in Justice Thomas's dissent, in which he said, I'm interested in revisiting this issue. He included some poison pills here, too, because he said, well, OK, you know, while we're revisiting these doctrines, I would like to overrule Bivens, which means you could never sue federal officers who are engaged in constitutional

violations. And he wants to overrule the Supreme Court's major, major decision in Monroe versus Pape, potentially. And that decision allowed you to sue state or local officers for violating federal constitutional rights, even if those state and local officers are also violating state law. And so if you overrule that decision, that means you can basically never go to federal court on a Section 1983 claim asserting a violation of the federal Constitution because you would always have to first raise a state law claim in state proceedings first. I think my point, though, I mean, I think all of that is right. I just wonder if they see what is happening, the protests going on, and democracy is working. This is what, maybe this

is what democracy looks like. And you don't need nine unelected individuals getting in the way. And I could totally see that being the case. I could also see not wanting to get into the question of qualified immunity again in an election year when the electorate is already relatively exercised about the lack of movement on this question from the court or anyone else. Yeah, no, that certainly could be the case. And I'd also add to that, I'm not even convinced that there is a majority on the Supreme Court to revisit qualified immunity.

I think that... Just two. I think it's Sotomayor and Thomas, which I think, again, I think is, I've said this over and over again. These are the two people of color on the court. They actually are the two who are most willing to raise questions of race, and qualified immunity is not facially about race, but it's obviously baked in there. And yet they probably would come to very different outcomes about a lot of these issues, even as they both are very interested in them. Yes. So one other thing on the order list to note, and this will begin our transition to

celebratory slash good news. This was, yeah, start the party now. The Supreme Court in Andrus v. Texas held that the lower state court had wrongfully concluded that the defendant's counsel had not performed efficiently. So they concluded that counsel's performance was deficient, potentially in violation of the Sixth Amendment right to effective counsel, and asked the lower court to determine whether that deficient performance prejudiced the defendant, thus violating his Sixth Amendment right to counsel. So that was a positive development just because I think it did a good job about clearing up what have been some unfortunate misunderstandings in ineffective assistance counsel doctrine that have often operated to the disadvantage of defendants.

Okay. Now, the opinions! Dun-dun-dun! Chase is like, finally! Gosh, this is why I came on like you invited me on here now we're talking about ineffective assistance of counsel the second amendment I came to talk about title seven okay it's great I get I get to listen to it before it comes out it's the podcast I love it you can see how the sausage gets made. This is it. This was a huge week for

opinions. And so let's start at the top of the week. So when you woke up on Monday morning, Chase, and you knew that something was going to happen, maybe it was this case, maybe it was some other case, but you would probably assume you'd be spending the rest of the afternoon in the fetal position somewhere, just like taking shots one after the other. How did your morning shape up after you realized that you won this enormous victory in the Title VII case? Yeah. So we've been, part of me didn't even think it would ever come out. It was like we in earnest started checking in January, you know, it was argued October 8th. It was the second day of the term. It was a statutory interpretation case. We thought, you know, there's a real chance they could dispose of it quickly.

Obviously that wasn't the case, but I started to think, is it ever coming at all? And then I convinced myself, maybe that's a good thing because maybe we can just never lose it. But winning it didn't seem possible. But I have to say, so Monday morning I woke up. So I cut my own hair in the COVID world. And every time it's a decision day, I cut my hair beforehand because I'm like, I might have to go on camera. And so a Sunday night I did. I was like, you know, I can't miss it, you know, just in case. And but I woke up Monday morning and I was feeling this sense of invigoration because 15,000 people had shown up in Brooklyn to march for Black trans lives in this sort of epic moment of beautiful organizing that was centering Black trans people, that was, you know, really continuing the legacy of the

LGBTQ movement in the right way, centering the right people. So I was like, whatever happens with the court, we're going to be okay. I don't know that I would have felt like that once we actually lost. I think it would have been, you know, horrible feeling. But I really, really did not expect to win. And I did not expect the Chiefs vote. And I think having it be 6-3, and then the other thing is, I thought, okay, maybe we eke out some sort of convoluted stereotyping win. But to have the sort of exact way that we briefed this case for Gorsuch, this clear per se unequivocal win for the entire community was absolutely the best outcome that we could get here, the best outcome. And I was just

completely exhilarated. And the opinion went load because of Alito's dissents or whatever. We've talked about that. I was going to say, we've talked about the delays, but one of the highlights of the delay for me, Chase, was seeing your series of tweets as you were trying to read the opinion. The black screen. The black, that was great. Right, and seeing other people's screenshotting portions of it, like just the bit-by-bit reactions. Wait, we won. We won. Gorsuch wrote it. Wait, it's 6-3. We won big. Oh my gosh.

It was just, I would highly recommend people go find that series of tweets to relive the joy. And it was a huge win. We've talked about the bottom line. It's 6-3. But it's a big win because it adopts this categorical rule that all discrimination on the basis of sexual orientation or gender identity is discrimination on the basis of sex. So just to recap for the listeners, this was a 6-3 decision. That, I think, was an enormous surprise. When we recap the oral argument, we thought that if this was going to go in your favor, it would probably be a 5-4 decision with the liberals bringing along Gorsuch.

I don't think anyone thought the chief was in play. So Gorsuch writes the opinion. The chief is on board with the liberal wing of the court. There are separate dissents from justices Alito and Kavanaugh. And Justice Thomas joins in, I think, the Alito dissent, but also the Kavanaugh, not the Kavanaugh dissent, just the Alito dissent. The bottom line is that discrimination against LGBTQ individuals is discrimination on the basis of sex and violation of Title VII. It's a huge win. And the opinion itself, I think, is really interesting. It gets to a very progressive outcome, but I think you could argue that the logic of this is very textualist and in that way, very conservative. And so big kudos to Pam Carlin and David Cole, who basically served up a logic that someone like Justice Gorsuch could sign onto wholeheartedly. And he basically replicated

the logic of their arguments in his opinion. So, I mean, this was amazing lawyering that the courts just sort of wholesale adopted into its decision. But I think I was cautiously optimistic because I do, I mean, to me, this is a lot like Obergefell, where you get to the outcome that you desire, but the reasoning could be used in less progressive ways going forward. So I mean, there is a kind of conservative logic to this opinion. So I said I was the turd in the punch bowl on Monday. Maybe I still am. Do you think that the conservative logic of this opinion is problematic in other statutory contexts? Well, so I mean, a few things. One, I mean, I would say Obergefell had, you know, even less to offer in a lot of ways. It was, you know, we have no equality norms in Obergefell. The language doesn't even make you know, it's like you can write about dignity all you want. But how do you cite that in a lower court opinion? You know, in your lower court, you know, briefing, it doesn't get you very far. With some spirit fingers. Yeah. It's like, you know, sometimes I would read Kennedy and be like, so what do we do with this? Yay, we won. But so here I think, yes, absolutely. You know, this this is true that it is a very

conservative way of approaching the law. It will result in, you know, potentially non-progressive outcomes in other contexts, although that was already true. I mean, this was the direction that the court was headed. And I think thinking about sort of anti-classification ways of approaching the law and the fact that we had, you know, sort of approached a lot of trans cases, at least saying, you know, it's facially about sex that, you know, you don't. But at the same time, there is still an anti subordination logic in it. And even in this opinion, even though it's a statutory interpretation opinion. So I actually was expecting something way more conservative to come out of Gorsuch if we were going to get him. I, you know, I thought he would I actually thought he would

take up or at least sort of make a sort of more definitive concession or holding or something in dicta that was more problematic about the meaning of sex itself, not just the meaning of because of such individual sex. And we, I mean, this was a very difficult needle to thread in our briefing. And we, every sentence was deliberated and we got the lines we wanted. We leave open every future case that we want in the exact way that we wanted him to take it. And so I think that we live to fight another day in so many contexts and we're just going to have to keep fighting in all of the sort of statutory interpretation context, because the case law was not getting any better. And so we're like, well, we're just going to have to use it to our advantage.

And I think that's always tricky, you know, in doing work where, you know, you don't want to cite Adirond in your LGBT constitutional cases. You don't want to cite the anti-abortion, you know, standing cases. But so we're always going to have to contend with the realities of how the law adapts in horrible ways. But I have to say I am overjoyed with this opinion. Yeah. So I think we will talk a little bit more about the textualist vibes in the opinion and kind of what that says about textualism. But you mentioned the anti-subordination vibes. And there was one passage in particular, where he says, applying protective laws to groups that were politically unpopular often may be seen as unexpected. But if we refuse to do that,

right, it would tilt the scales of justice in favor of the strong and neglect the promise that all persons are entitled to the benefit of the law's terms the strong and neglect the promise that all persons are entitled to the benefit of the law's terms. Like that is a pretty strong anti-subordination purposive in some ways way of reading a statute. And it kind of toggles back to constitutional cases like Moreno and Romer and this idea of animus against a politically unpopular group. That's sort of what's baked in here, too, which is really interesting and unexpected, as you say. Especially this is the justice who asked during argument to David Cole, wouldn't it cause

massive social upheaval if we did this? And then he's saying, in essence, we can't care about that, which of course was what we put out in The World After, which I think, I don't remember, Leah, if you wrote, there was like the pieces, like there is no massive social upheaval exception to textualism, which that was the message too. And we definitely post argument in our sort of how do we correct for various things, I think at the end of the day, you know, we got from Gorsuch exactly what we needed and more, and then somehow the chief as well. So can we talk about the 10th justice in this opinion? Usually we talk about the Solicitor General as the 10th justice, but in fact, there was an actual 10th justice in this opinion because both sides were shadowboxing with the legacy of Justice Scalia.

Who knew? They were claiming you would know their opinion was right because or if Justice Scalia would have voted their way. It was extremely striking. And it's reminiscent of what Justice Kagan had said in her speech honoring Justice Scalia. We're all textualists now. But Justice Alito in particular really just bore down on, you know, Justice Scalia was perfectly clear on this. Leading proponents of Justice Scalia's school of textualism would never have done this. And this also came out in a lot of the commentary after the decision too. But it was the majority, Alito, Kavanaugh, everyone laying claim to. It was in the party's briefs too. We did it. Yeah, I mean, you know,

so we were pulling from Scalia's text and we were overemphasizing Scalia role on call. You know, I mean, that was, we put that in play ourselves and have to somewhat take responsibility for that. But I think it's like a really interesting case study on like, what exactly does textualism get you? If everyone and most people in the public sphere are saying all of these opinions are textualist, well, does that mean textualism is resolving these cases? Right? They all represent

slightly different variants of textualism, focusing on, well, how do the people who drafted this think it would be applied, focused on ordinary versus literal meaning, you know, how are you selecting between these different versions of textualism? Like, how is textualism resolving these cases? Well, so is it actual textualism in the plain meaning of the text that's doing the work? Or can textualism be marshaled into sort of outcome-driven outcomes? I mean, like outcome-driven results. And that seemed to be the big question. And, you know, Alito is like, you're outcome-driven. And Justice Scalia would not have been. Although

I heard some of the commentary that would say, like, if Justice Scalia wouldn't have been on board for this, it is because he would take an outcome driven. Yeah. And so I just thought it was really interesting that, you know, he has been, you know, he's passed away, what, four years ago, and he's still very much at the center of so many of these discussions and debates. Yeah. And I mean, I do want to say too, I mean, I think as an advocate, your job is to serve up an avenue to win and make whatever individuals are the audience for your arguments comfortable with the consequences of the argument that you're putting forth in front of them and being somewhat willing to ignore the harder questions that your case raises.

And that, I mean, we won that in marriage. They just ignored the polygamy question. That was our hard question. You know, we won it here. And I think, you know, that's what you want to do. You want to sort of serve up a tight argument that makes them feel good enough to write something and say, we'll save the other cases for another day. To the point of ignoring other possibilities or the parade of horribles that the other side presents. So one of the things that was really striking is at the end of this opinion,

I think on the second to last page, Justice Gorsuch acknowledges that religious exemptions may be an issue here. And it's certainly an issue before the court because they have these two ministerial exemption cases that are pending right now. And he talks about RFRA being a super statute that perhaps even overrides the demands of Title VII. But he says that's a decision for another day. We'll get to that later.

What does that look like when we do get to it? And we may get some decisions that actually play into it in this term. So what does this look like? Yeah. I mean, and I was sort of of the mind that the only way we win on some level is if they know they're going to screw us later on religious exemptions, which is dark, you know, but it is, I mean, they have Fulton. But Obergefell is kind of the template for that. Yeah, yeah. And I think that the reality is, though, he does have the language in the opinion about how whatever the sort of lines we draw, there's not going to be a different standard for sexual

orientation and transgender status. The other side would not going to be a different standard for sexual orientation and transgender status. The other side would like there to be very much. And so in that one paragraph where Gorsuch is saying, you know, all they're left with is saying, well, there has to be a different causation standard here. I think that as, you know, they're going to broaden the ministerial exemption either way. They're going to cut into, you know, sort of neutral laws of general applicability. And so to get us in at the front end feels critical, and we'll sort of have to contend with those on the back end, which is the sort of unfortunate reality of where we are. I do think on the question, which I thought would figure much more strongly in the opinion about, you know, sex separation in activities and rules, I think that the citation to Burlington Northern,

which we teed up in our briefs exactly, of sort of how you figure those cases out by looking at the meaning of discrimination gives us a ton of room to continue to argue for those contexts in future cases. Yeah, I think that that's right. And it also kind of gets back to this question about like, what is doing work to resolving these cases, right? Like, is it textualism and the idea about sex? Or like, is it an understanding about what discrimination entails, right?

Because like parts of the opinion reflect, well, everything should be sex blind, right? And the reason this is sex discrimination is because you know something about, right? Or are conscious of an individual's sex. But then there is this anti-subordination thread, which is the reason it's sex discrimination is because it reflects a very negative view, right? Like a sexual stereotype, which the opinion doesn't go anywhere near, or an anti-subordination idea about sex differences. And so that will be reconciled for another day. But the opinion is,

I think, really significant and I think should be helpful in a bunch of anti-discrimination cases, like not just about discrimination on the basis of sexual orientation or gender identity, but elsewhere too. I do want to, I just, I want to say, so the opinion doesn't say Pricewaterhouse at all. And I think, you know, this is, it's fascinating. So many people pushed us to brief these cases as stereotyping cases first. And if you look at our briefs, we go with the Katie Iyer, you know, it is but for, and this really confused people. And not to, you know, be like we were geniuses of strategy. No, you can do that on this podcast. Just do it.

FYI, Katie Iyer is a professor at Rutgers Camden in New Jersey, and she's written a lot about this whole question and has written a series of articles sort of identifying this line of reasoning that ultimately prevailed in these cases. Yeah. And I think so. And when you get to the Supreme Court, you do sort of have to change your strategy from the lower courts. And, you know, especially when you get to this Supreme Court. And I remember after cert was granted, I was feeling utterly despaired, despairing about the prospects. And I read Katie Iyer's article. I think it was called sort of like originalism and LGBT rights at the time. And I don't know if it's still called that. And I was like, we're going to win. We have a chance. This is exactly how we're going to do it.

And, you know, I think that's another, you know, it's a reminder of how people being creative thinkers out in the world inform strategic decisions in litigation. And we carry that Law Review article with us all the time. And just as a reminder that we had this strategy and to say, you know, we are going to lead with this very textual sort of like, you know, where you have like Bill is attracted to Susan and Susan is attracted to Susan. And but for sex, they would not face discrimination. And that wasn't how we briefed these cases in the lower courts necessarily. You know, intuitively, you want to go with sex stereotypes, but there are some challenges with that, with this court. And Price Waterhouse is only in the dissent. So statutory originalism and LGBT rights is the article by Katie Iyer, and it appears in the 54th volume of the Wake Forest Law Review, which came out in 2019.

So it's a terrific article. And I have to say, law professors, we don't even expect our parents to read what we write. So it's so nice that you actually read this and that it was useful to you. Like, this is why we do this work. And yeah, so like, my heart is full right now, because I just expect everything to go into the ether. This is great. You know, Katie's eyes on statutory and originalism and an approach to interpreting statutes and the opinion itself is, I think, filled with interesting nuggets about how to interpret statutes, you know, in general and kind of going forward. Justice Gorsuch first rejects the idea that there is a so-called donut hole canon. I don't know that anyone really suggests this. I have to say, when I took statutory interpretation in law school, nobody mentioned the Duncan theory of statutory interpretation. Right. So the donut hole canon in Gorsuch's view is the idea that a statute doesn't apply to a certain case unless Congress speaks with clarity to it. And he says, that's not how we, you know, deal with statutes. And then, you know, the elephant in the mousehole canon was an idea that we kind of alluded to previously,

which is, well, Congress wouldn't smuggle in this significant change, you know, without being explicit. And it was presented as an exemption to the ordinary operation of textualism, right? Like, like textualism is fine, except when it allows you to reach these perhaps unanticipated results that are required by the plain meaning of the text. Right. And he says, like, look, title seven is the elephant. So, you know, there is there's no point in saying that people didn't understand this was like a significant change that would lead to, you know, perhaps some unexpected or unanticipated results. There's this beautiful passage as well where he sort of takes the other side saying, no one. And they always said no one in 1964 would have expected Title VII to apply to LGBTQ people. And he's like, really, no one? Because people started filing claims right away.

And it sort of brings forth, it is a real challenge to this idea that for trans people in particular that we didn't exist before. And, you know, Renee Richards' case about tennis was not that long after that. And they exempted trans people from the ADA. You know, they knew trans people existed. We've always existed. And so I think Gorsuch sort of taking that history forward, you know, it was really a sweet moment in the opinion for me. So is Neil Gorsuch going to be the grand marshal of the gay pride parade? Because I've seen that on Twitter. I've seen that on Twitter. I, we, he signed on to the DACA dissents three days later. So let us be clear. Still Pam Carlin, still David Cole, not Neil Gorsuch. Yeah. I think that we have a very clear understanding of who Neil Gorsuch is.

And, you know, I think, well, I don't know, but I think, you know, we know that we did this work, you know, and I think that's the other thing like this. And David Cole afterwards said, you know, that you could have brought this same case 20 years ago and we would have lost and the text would have been just as much on our side. And of course, that's true. I mean, the reality is that the changes in public understanding and public discourse do have an impact because courts are outcome driven, whatever principles of textualism they apply. Yeah, I think that that's really important not to like understate the work of like organizers and people like pushing this issue into the, you know, public discourse, even though, you know, as you say, the textualist

arguments would have been no different 20 years ago. And we actually got a glimpse of the fact that those arguments had been building for some time, because the majority opinion actually cites a number of cases where they said Title VII in its original form, the drafters might not have contemplated expanding Title VII to include, for example, motherhood discrimination or sexual harassment against men by men. But yet we have these cases. So there was actually a very interesting moment where Justice Gorsuch seemed to be saying stare decisis is a big deal and we're going to follow those precedents. And it's almost like he knew that we had these

mugs that said stare decisis is for suckers. He was like, I'm going to short circuit that merchandising avenue for you. Well, in his view, statutory stare decisis is apparently not for suckers. It's different. That's right. Constitutional stare decisis might be for another day. But yes, he relies on all of these cases like on-call Phillips versus Martin Marietta and Manhart for the idea that Title VII protects individuals, not groups. And yeah, that

was, I think, very interesting to see. And forms of discrimination that perhaps the drafters were unanticipated. Yeah, I don't know if you know, but Scalia said that in on-call. We mentioned that the other day. Oh, no way. Didn't catch that at all from reading the opinion, Chase. Do you think part of the Alito callout of Scalia was just sort of like, you, Neil Gorsuch, sit in his seat. We expected more of you. So why don't we just put this question out there?

Why was Sam Alito so angry? Right? This opinion is nasty. It is 100 pages long. He calls it arrogant multiple times. There's a pirate ship. Right, exactly. He accuses it of being a pirate ship flying under the false flag

of textualism. Why is he so pissed? Doesn't it feel like he was like, we were supposed to be a conservative court. Yeah. I mean, that could be. And I don't know. I mean, he was very angry at the argument.

I don't know as much about the court. He seems very angry. But I don't, was it you, Leah? There's someone saying that, did he lose the votes? Did the votes switch? There was this deep sense of betrayal. And I don't know how, I mean, granted, obviously, Obergefell was a constitutional case, but I don't know how you go from being in the dissent in Obergefell to and not being a textualist necessarily as the chief and then signing on to the majority opinion. And I don't know who made Alito so mad, but wow. I wonder if this was a 5-4 decision and the chief was with them and something happened to make the chief peel off.

I don't know. He could have joined Kavanaugh's wet napkin dissent. I just, it's like, it reminds me of Kennedy's concurrence in the Muslim ban cases, like where you're just like, nobody wants your congratulations. Like you're in, you're ruling against us. Like don't congratulate us because we're hardworking. Like what is in you're ruling against us. Like don't congratulate us because we're hardworking. Like what is that patronizing nonsense? You know, there was this one line in Justice Court, such as opinion, which I would have amended, you know, Neil, if you're listening, consider this when you're doing the revisions in the Supreme Court reports. He talks about,

you know, how it might be that an employer who discriminates is thinking about sexual orientation rather than sex. And then he says, quote, but Title VII doesn't care. And I think Josh Bloch, you know, on Twitter called this the honey badger don't care moment, which I loved. I would have maybe used this line once again and just quoted some of Justice Alito's, you know, very angry words and said, but Title VII doesn't care about Sam's feelings and then left it there. So, you know, again, for future reference, Neil, if you're ever looking for some digs, listen to the pod. So maybe since we basically already covered the dissenting opinions and whatnot, we can shift to talking about the implications of the opinion a little. Chase, you mentioned that,

you know, one of the concerns about the tone and whatnot of the Alito dissent is the reality that there is still a lot of very insidious discrimination against LGBT individuals, particularly transgender individuals coming from the Trump administration. And the Friday before the decision, you know, the administration released this new rule that would have rolled back some of the protections against discrimination in health care for transgender individuals. And, you know, immediately there are questions about what does this opinion do to those regulations and other forms of discrimination against LGBT individuals? And I think most people read the opinion as pretty sweepingly invalidating most explicit and facial classifications on the basis of gender identity and sexual orientation. Because, again, they declared flat out that all of that discrimination is discrimination on the basis of gender identity and sexual orientation, because, again, they declared flat out that all of that discrimination is discrimination on the basis of sex.

But surprise, surprise, is that the Trump administration's view of what the opinion did? So no, it is not the Trump administration's view. I also think that they were expecting to win. And so they're in the process of recalibrating. Although, you know, they did issue the regulations Friday afternoon at 4 p.m., knowing that there are SCOTUS opinions on Monday morning. So they also just wanted to get in their shot no matter what was going to happen. But I don't see any way where they can enforce regulations that are based on an interpretation

of a statute that the Supreme Court has now wholly rejected. So I think as to at least the executive action taken at, you know, by agencies interpreting federal prohibitions on sex discrimination, that in court, we should win. I don't think they're going to stop trying because they're not, you know, and then, you know, today, they filed a statement of interest in our constitutional challenge to Idaho's anti-trans ban, essentially adopting the same anti-trans rhetoric that they always adopt with this sort of three by, you know, by the Civil Rights Division opposing an equal protection claim by transgender plaintiffs. I mean, that's a pretty bold action, you know, four days after the Supreme Court decision. So I don't think that they're going to stop. And I think they believe that this interpretation, at least as to Title IX, violates the privacy rights of cisgender women.

And we're going to start to see that continue to emerge in the lower courts. Did you see implications for the military ban? I mean, I think the military ban is going to be tougher because it's, you know, the first of all, Title VII doesn't apply to active duty service members. And and the courts have already ruled that that, you know, have sort of let the ban go into effect. And it's going to just be how it plays out in the courts and whether or not there really was a measured sort of consideration of the issue, not just Trump's tweets. The way to get rid of the military ban is to vote Trump out of office because I think that's such a quick fix by a new president. So the other kind of piece of fallout I just wanted to note about the opinion was the utter flipping meltdown of some portions of the conservative legal commentariat, who I was

honestly concerned that they were, you know, shitting themselves or just you know going to have just lose it right in light of this opinion you know you have everyone from you know ed zillow wheelan you know saying bud gorsuch question mark carrie severino of the Judicial Crisis slash Confirmation Network having a crisis herself saying Justice Scalia would be so disappointed that his successor has bungled textualism and just a variety of other people again declaring this a crisis, the end of the conservative legal movement and so on. And again, it is revealing in a lot of ways to me about what textualism and originalism were understood as and understood to be doing if they see this as a betrayal that someone applied this methodology and reached a result they didn't like. But I just thought it sort of took all of

that as if Justice Alito could tweet, this is what we'd have, right? I mean, for Alito, there's a Justice Alito egg somewhere, you know? Feeding things for Ed to retweet. You know, yeah, I mean, the meltdown, but I think that's exactly right. You know, they were like, originalism and textualism are to, you know, are to be used to result in the outcomes we want. This is a betrayal. How could you possibly do this? And the, I mean, just, it was really satisfying, I have to say, to see the meltdowns because, you know, we knew that we had a chance to win using their logic. We had the cases, we had so many statutory interpretation cases on our side, and that the only way we're going to lose is if they

abandoned principle for the sake of outcome. And we won. So people are really mad. And it is incredibly satisfying. I want people to print out all of their emails from ADF and Heritage and all of these groups and just put a little book together. I think that would be the ultimate memory of this win. Well, maybe one of our listeners will gift you that. Like a Shutterfly book. Yeah. So some very famous Americans weighed in on this um the president weighed in professing to have read the opinion what's the over and under that that was true i mean come on

yeah right okay and then taylor swift my girl your girl just in case uh you haven't seen my tweets i'd like to use this occasion to invite you on the show that's not just you everyone listening that is specifically one taylor swift taylor swift if you would like to join the cast of strict scrutiny we would be very pleased to have you um yeah she's um she's been doing a lot of big stuff these days. Her Confederate monument thread. Not on my bingo card. Not on my 2020 bingo card. Yeah, no, no. That along with the DACA and the Title VII wins.

Really unsurprising. Indeed. If you told me like six years ago that I would be downloading Taylor Swift and deleting Kanye. Sure. Should we move on to DACA? That's what I was going to suggest, unless, Chase, there's anything else you want to cover or add? No. Thanks so much for covering our beautiful victory.

We are delighted to. We don't get moments like this. Thank you. This episode might be long, but come on, we need to seize these moments as they come and milk them for all they are worth. So with that, thank you, Jace. Thank you. Congratulations to all of you at the ACLU. Yes. Thank you so much. The next case we wanted to discuss is, of course, the DACA case, which we also did a short instant analysis episode of. So we will not do as much recapping here. But just to remind our listeners what happened, the Supreme Court invalidated by 5-4 the Trump administration's

rescission attempt to end the Deferred Action for Childhood Arrivals program, finding that the rescission violated the Administrative Procedure Act because it was arbitrary and capricious. Chief Justice wrote the opinion, joined by the four more liberal justices in the majority. As we noted on the recap episode, the majority said it's arbitrary and capricious because it doesn't take into account alternative courses of action, namely modifying the program in different ways, decoupling the relief from deportations from benefits, potentially changing the timeline of the rescission, allowing various DACA recipients to take into account some of the

reliance interests on the program. And then second, and independently, that the rescission was arbitrary and capricious because it did not explicitly factor into account the reliance interests on the program from not just DACA recipients, but many others as well. So thoughts on DACA? So what's really interesting is that we have the DACA decision coming out, basically saying that the administration failed to follow the appropriate procedures that are required to dismantle a program like this under the Administrative Procedures Act. At the same time,

you have this huge flap going on in the executive branch over John Bolton and his book and the book sort of leaking everywhere. And I just want to suggest to our listeners that what Bolton reveals in the book and what the chief justice implicitly criticizes in this opinion are sort of species of the same impulse. And it's basically like, you guys have zero idea how to govern. You have no idea how to run a functioning government. And Bolton is like, you know, he's doing, the president is doing all of this crazy stuff with like China playing fast and loose with Turkey.

Like, you know, I'll get the Southern District of New York to disregard this prosecution. And then you have the chief justice sort of saying, like, you guys are playing fast and loose with the rules. Like, and to be really clear, this isn't a decision that says DACA is great, DACA is valuable or anything like that. It's just like, you know, this is pretextual. If you're going to dismantle this, you need to own it and you need to have justifiable reasons. And, again, you is a government that doesn't know how to operate in the manner that

we have come to expect from other executive branches. That's such a great point about, you know, both the Bolton book and this opinion reflecting the idea that our government is run by a bunch of chaos monkeys, right? Like they cannot get their acts together. They are running around trying to get signed copies of Elton John's Rocket Man for, you know, North Korean dictators that, um, yeah, it's just wild. Like, I mean, like it's a big, every other administration has managed to mostly do this and you can't, and this is like the second big case where the court's like, I'm going to refer you again to the administrative procedures act, please follow it. And they're just like, yeah, like just the cutting corners over and over again. It's the same kind of impulse.

Yeah. I mean, of course, I am beyond thrilled with the win. But in some ways, the fact that they lost on this ground should be a cautionary tale because it is a warning about, well, what do you do when you have a more competent administration trying to do the same things? And it gets back to this point we were discussing, you, Kate, and me on the episode that we did on DACA, which is how much of this is they're just being unable to cover their tracks, right? And put on a good show and how much of it is, well, on the substance, we just don't believe you. And we think, right, that you were doing this for impermissible reasons. And

I don't, I don't know, right. But the ostensible reasoning in the opinion would seem to allow a more competent and evil administration to do this. Oh, to get away with it. Yeah. And to do it successfully. No, again, and you know, I just, I come back to the origin story of this administration. Right. I mean, like the Trumps are basically New Yorkers in the building industry, like real estate. You know, like you just like kind of bare knuckle down and you get stuff done. And obviously that does not work in government where there are procedures like I mean, just like the whole question about preserving records, like they can't seem to get done. And it's not surprising if you think about it.

They don't map on well, like just sort of shouldering in and getting what you need to get done done to get a building up and running is not the same as actually running a government. Right. And I think here, too, the opinion contained several interesting nuggets on administrative law or, you know, other legal doctrines. So for example, one issue that divided the majority from the dissent is whether and to what extent to consider the additional later memo that was written by Secretary of Homeland Security Kirstjen Nielsen, in addition to the memo written by Acting Secretary of Homeland Security Elaine Duke, because the Nielsen memo had provided some additional reasons for rescinding DACA,

whereas the Duke memo had just said, we are rescinding, exactly, we're rescinding it because it is illegal, not we think it is illegal, right, or there are legal doubts about it, but because it is illegal. And the majority said, we can't consider any additional reasons in the Nielsen memo that weren't in the Duke memo, because the Nielsen memo was explicitly formulated in response to a judicial decision that found the Duke memo inadequate. And the Nielsen memo purports to only clarify the Duke memo, not make a new policy. And so, you know, this is, I think, a potentially significant development in administrative law just going forward.

Yeah. Yeah. No, I think that's I think that's right. I think one of the things that sort of struck me was Justice Sotomayor once again writing a solo opinion, trying to sort of surface questions of equal protection. And she did this in Trump versus Hawaii, which I think had, again, similar vibes to it. And she's calling out specifically the administration's campaign rhetoric, which was deeply raced and very much sort of organized around this idea of undocumented persons or migrants more generally, whether documented or not, being a threat to American values and the homeland more generally. And she says, like, you know, these things may be out of time, like this happened in the campaign, but they obviously implicate the policy decisions that are being made in this now successful campaign

turned administration, and we can't divorce them. She's the only one willing to take this up. And I just think it's really interesting. And she's sort of coming to own this question on the court. And sometimes maybe Justice Thomas is also there thinking about race, but not in quite the same way. No, it is really fascinating. And, you know, here the court spoke 8-1. So it was all of the other justices, you know, specifically rejecting this claim and her echoing her dissent from Trump versus Hawaii, which Justice Ginsburg had joined. But here she's just speaking for herself. And I think she, I mean, she's completely right. You mentioned the

origins of this campaign. You know, the president launched his campaign, including statements along the lines of, you know, Mexicans are criminals and rapists. And then, you know, a host of other statements, you know, some directly linked to undocumented migration and some not. And so it's at least plausible as Justice Sotomayor persuasively made the case to allow the plaintiffs to proceed further on their equal protection claim. But, you know, here the court ends up, you know, invalidating the policy on other grounds. You know, we mentioned the 10th justice in the last case. Here, there was an interesting mention of another potential 10th justice, some guy named Merrick Garland, where the Supreme Court. Who's that?

Right. Who's that? Oh, Earth 2. So the Supreme Court has this interesting pattern where they will often cite decisions that are persuasive from lower courts, but they don't always identify the authors of those opinions, right? They just sometimes do in an additional parenthesis that will say, you know, Murray, comma, J. And here, right, the chief when he is announcing these foundational principles of administrative law cites an opinion. And at the end of the opinion, it says Garland, comma, J. Right. So that was a choice. Was that shade? You know, I don't know. You know, I certainly don't think that the chief has gone wobbly, right? He's no liberal in any way.

But I do think that the progression from the travel ban case, which we've said several times, is related to this one and the census case. The progression from the opinion in that case to the opinion in the census case to this opinion, I think perhaps reflects some Bayesian updating about things he is observing about the world? Perhaps, I don't know. So here's my question. I wonder if just like having to sit there and literally listen to the charges against the president, the defense of the president, and I don't know that you could be a sentient person and sort of just leave with like, oh yeah, our government is working completely fine. And I wonder if that informs this. That's really interesting, because I

remember from the impeachment proceedings, you know, he gave that admonishment that was couched in terms of both sides need to remember that they are in the chambers of the Senate. But perhaps, yes, you know what? But that was just about civility. I mean, he actually had to hear the substance of the arguments against the president, the substance of the defense of the president. And maybe, you know, this is a case like, does this government work right? I mean, to the point I made about Bolton, like a lot of the stuff that was in the Bolton book were things that the Democrats wanted surfaced in the impeachment hearing and that never surfaced. But, you know, you had some of it

in that particular venue and he heard it all. And I just I wonder if you can't sort of just you can't just firewall that like you necessarily bring it to your decision making. Yeah, that that could very well be. And, you know, perhaps we will learn more as we see these additional decisions coming down, including other decisions involving administrative actions the administration has taken, including, you know, as it relates to the Affordable Care Act's contraception mandate. And it's possible. Yeah, I don't think that. I look. Sorry. Okay, that's where my theory fell apart. Positive vibes and just trying to take them for all they are worth. You're right. You're right. That was trash. So, you know, here, too, I think it is worth noting some potential implications of the decision and also some of the immediate aftermath of it. You know, three justices, Justices Thomas Alito and Gorsuch would have declared DACA itself unlawful. And as we are thinking about the importance of this decision, I think it is important not to lose sight of the significance of the 2020 election.

Right. In part because the president, as he did in the census case, has already started to make insinuations that perhaps he will now or in the near future again try to end DACA, you know, listeners might recall that in the aftermath of the census case, he tweeted out that reports of the citizenship question were, quote, fake, and he was going to try to add the citizenship question to the census that didn't end up happening, even though some government lawyers indicated that they were actually trying to look for ways to do that. So we don't know what is going to happen in the near future. But I think, you know, if he is reelected in 2020, you know, and there are three votes for DACA being unlawful, and there's this pending district court case in which Texas is suing to have DACA declared unlawful, you know, who knows what will what will come from that. So no, I think I think it's unlikely that they will be able to dismantle the program in advance of the election. But I think if he is reelected, not only will he be newly emboldened to do it, he will have four years in which to get it right this time.

And potentially with another case that actually furnishes a very clean way to do it. Right. You know, he did, the president, that is, invite us all to consider whether in light of this decision, did you get the impression that the Supreme Court doesn't like me? So, OK, that was such a weird, thirsty kind of tweet. Yes, it was. And we have a weird, thirsty president. So there you go. So Justice Alito filed a separate dissent. The main dissent, as Chief Justice Roberts noted, was from Justice Thomas. But the Justice Alito dissent was interesting, if only because it was such a contrast to his dissent in Bostock, where he wrote 100 pages. This was only two pages. But he made the two pages really a sort of stunning declaration of sort of the failings of the conservative wing of the

court to sort of hold together and sort of the idea that the federal judiciary is supposed to be an instrument of restraint impervious to the whims of political pressures. And, you know, he notes that here is a federal judiciary that seems to be swinging with the times, so to speak. Yeah. And another, you know, part of that dissent was his concern that it took three years to resolve this case, which put this program kind of on hold. And something that was interesting to me is in some ways, DHS seemed to channel that dissent in their statement issued after the decision, in which they said, you know, it's so unfair that the Supreme Court would do this to DACA recipients, right? Like, as if the administration

and DHS was doing something so great for DACA recipients by ending the program. So it had that kind of like, well, I mean, mean, I think all of the dissents sort of echoed this idea that this was really a policy-making decision that should have been executed by Congress. Congress should have acted. And we all, I think everyone understands that, but Congress is like hopelessly divided

and it's unlikely that that will happen. But again, it was just sort of like not for the president to do and not for this court to step in and make a decision that seems, at least in the dissent's view, to be instrumental and shaped by political pressure. Yes. Right. That was definitely part of the vibe as well. But congratulations to those who argued this case. You guys had a lot of skin in the game. Those DACA recipients who came out and talked about their stories and were very public about

what this meant to them, I think really made a difference in sort of elevating and magnifying the human stakes of this program. I think they did too. Just as we were talking about with the Title VII case. You can have all the best legal arguments in the world, but, you know, an extremely important part of any court case or advocacy is getting an issue into, right, the broader public understanding and making people understand at stakes. Yes. All right. So should we shift to court culture? Let's do it.

Because there was some cultural stuff happening in the courts this week. So, Leah, I was, I think, knocked off my perch a little bit. I think it was Wednesday night when The Intercept dropped this story about some tea shade all being spilled in the D.C. Circuit. So here's the skinny. In an email that was sent to the entire circuit last Sunday. The D.C. Circuit. The D.C. Circuit, yes. Judge Lawrence Silberman, who's a Reagan appointee, lambasted Elizabeth Warren for her amendment to unburden myself in opposition to the madness proposed by Senator Warren, the desecration of Confederate graves. And it sort of went on to discuss, you know, the reasons why he felt that changing the names would be inappropriate. It was sent out across the D.C. Circuit to judges, clerks, administrative staff, and nobody responded for a day. And then

finally, after a day, there was a response, but it was from a law clerk, right? So the law clerk identified himself as one of five African-American clerks on the D.C. Circuit and the entire D.C. Circuit, so including the district courts as well. And he began it by saying, hi, I'm one of only five black law clerks in this entire circuit. However, the views I express here below are my own. Since no one in the court's leadership has responded to your message, I thought I would give it a try. And then what followed was basically a point-by-point rebuttal of Silberman's claims and sort of talking about the very human stakes of this for someone who, as he says, was descended from slaves. And so so much to unpack here. So what did you think when you heard the story?

Um, you know, I think I had a combination of several different emotions. One was admiration for the law clerk for, you know, being willing to do this and say this on an entire court-wide email, right? Like that took incredible bravery and strength to do this. So let's just break it down. Like it's not just standing up to a judge with lifetime tenure, who's a very powerful judge just generally. This is possibly career suicide when you think about everyone's going to know who did this. Like I'm not mentioning his name, but his name has been disclosed. And this judge has a network of clerks in every facet of the legal profession. So to all of the other judges on that list, right? And when you are problematizing their colleagues' statements to them too, right?

You have no idea not only who you're alienating on that list, but all of those other networks too, right? And the other clerks and staff. So, you know, on the one hand, there was admiration for the clerk's bravery. And then, you know, the second was just kind of horror and embarrassment that a law clerk had to be the one to initially respond to this email. So this part, I mean, and listen, I hear this because I think, you know, when these things come up on in law, in the context of law schools and, you know,

a faculty member says something untoward or that he or she should not have said, and students want you to say something and you're like, yes, but you also have to live with that colleague for like the rest of your career, where a student cycle through every three years. So I get that this is a big deal for colleagues to call out another colleague, but there is a very easy way to do this here. You could have simply sent an email to the entire courthouse or the entire circuit saying, this is an issue that is likely to come before us as we sit in D.C. and these military bases fall under the domain of the Department of Defense, an administrative agency. We should not be opining on this in a public forum like this email, even if it's within the courthouse. And that would have

been a very classy, diplomatic, politic way to just get like, we shouldn't even be having this conversation. Yes. And one of the judges who subsequently replied, I think also made a more diplomatic attempt. A lifeline. To do this. Right, a lifeline to Judge Silberman saying, look, your attempt to defend slash apologize for all of the people who defended the Confederacy,

like I'm gonna assume you didn't mean to do that. And instead, the only thing you meant to do was to suggest that, you know, the grave sites themselves should remain. Should not be, yeah, should not be desecrated. Right. And so there are different ways of calling out a colleague. Right. Like, so you can say, oh, right. You know, I'm sure you didn't mean that. And you meant something else. You can say, like, is that really what we should be saying? Like, there are different ways you can do it. There isn't an easy way. Right. And like, that is certainly difficult. That's certainly the case. But it also can't be true that because we have these, you know, more longstanding relationships that have to endure for decades to come, that we do nothing about it. more empowered. Exactly, who are least empowered and the most vulnerable position. And this is what I think, you know, you mentioned the students who are asking for professors to say things to other

professors. But I also view this as, you know, lawyers asking other lawyers to say things, you know, to other lawyers who are making problematic statements, and so on, or in just a bunch of different contexts, like what people are asking for is people with more power to use that power to do some of the work that is currently being done predominantly and overwhelmingly by people who are more vulnerable and with less power. And the point here, too, I mean, even in the faculty context, I will say students going to an assistant professor, an untenured professor to sort of take a stand on something. I'm like, you need to go to someone with tenure. Like, and here though, every one of the judges on this court

is life tenured. I mean, what is life tenure for if not to just sort of weigh in and like, even if it's just to say, I don't think this conversation is appropriate for email. I think we should talk offline. I think we should talk offline. I would like to talk with you offline about this comment and what it means to me. And more importantly, to intervene before the clerk feels like he or she has to. And a number of judges did intervene after the fact, but I mean, a child led them. Right. Exactly. I think, you know, we've mentioned Pam Carlin now several times on this. I think, you know, we've mentioned Pam Carlin now several times on this episode and previously, you know, she has said, you know, courage is a muscle,

right? Like you have to exercise it, right, in order to do something. And I think, again, this is one of those situations where it can be really, really helpful to try and have conversations between people who I am willing to imagine they want to do better, right, when they say they're allies. And we can discuss, right, here are examples where people have said things and I wasn't sure what to do, right, and you can talk about possible things you might have said. And it gets easier, right, to say things in the moment if you get some practice at doing that. And again, it has to be the case that like, at some point in our professional careers, we can take some risk and exercise some of the power and privilege we have to try to do the right thing. And it just seems like as a profession and perhaps as a larger society,

we are so small C conservative and unwilling to do that, that, you know, again, just like imagine you are putting this all on a law clerk who just graduated from law school and you are asking them to take this big risk. To take the heat, take the heat. Yeah, you shouldn't be doing that.

Carry this water. Right, you should not be doing that. Also, I mean, maybe there's a role here for the other clerks. I mean, no one saw this email and was like, whoa, that's quite an email. And like, you know, like, could you, like, is there a way to have sort of

banded together collectively to express like, wow, I'm surprised that, and to do it collectively so that the heat isn't on any one person. I just, like, I, like literally my heart was in my throat because I, you just don't know what's going to happen. And this kid took an enormous risk, was incredibly brave. I hope it works out. I really do. Yes. And I've reached out to him to offer support. But I really do hope that there aren't negative repercussions because I just, this should have been called out.

If only to say it was inappropriate to opine on this, given the nature of your position. Further, it also made a lot of people incredibly uncomfortable. Right. Yeah. And, you know, maybe you didn't mean that, right? You probably didn't mean to do that, right? But like, I am asking you, right, to think about and recognize how extremely like hurtful your remarks were and how that you know was extremely just like exclusionary and made probably a lot of people feel not only uncomfortable but like very unwelcome um but you know we wanted to talk about this because it is i think representative of a larger problem in our profession and an issue that, you know, we care about.

And we ask people to think, like, if you were in that situation, what would you have done? And, right, if you don't think, like, you would have had the impulse or ability to say something, like, what are the things you can kind of do, right, to get yourself to a position to, again, like, exercise some of the privilege you have to not leave all of the work to someone else. It's a good thing to think about right now. Yes. So I really don't know what to say to you, Leah. Like it's so weird that we end an episode and we're both oddly buoyed by what we've seen during the week.

Usually our episodes end on a note where I just want to go drink barefoot wine by myself in my office, but that never happens. Well, in some ways we are ending the episode on that note. Well, but I actually am encouraged that, I'm encouraged by his bravery and I hope we can all be as brave as he was. Yes. When the moment calls for it. Yes. That's a better way to end.

That is a better way to end. And so with that, thank you to Chase Strangio for joining us for a delightful conversation. Thanks to our producer, Catherine Fink, for subbing in this week and editing what is a very long but joyous episode. Joyous. Exactly. Thanks to Eddie Cooper for making our music. Thanks to all of you for listening. You can support the show at our website, strictscrutinypodcast.com, by getting some merchandise.

And we're going to have some additional exciting new merchandise that we will be launching soon. So stay tuned for that additional glow up.