Strict Scrutiny - Affirmative Action Reaction

Episode Date: November 7, 2022

Leah, Kate, and Melissa recap the many, many hours of oral arguments in the affirmative action cases SCOTUS heard last week. 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. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court's efforts to dismantle any potential we have for a multiracial democracy and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Lippman. And

today we have a jam-packed episode because with so many big cases the court heard last week and so many cases the court will hear this week, it's going to be a little bit light on court culture. And we're really mainly going to do recaps of last week's cases and save the upcoming cases for when we'll be recapping them in the next episode. So let's get right into the recaps. OK, so first, of course, are the two genuinely terrifying cases the court heard on Halloween to open the sitting, Students for Fair Admissions versus Harvard and Students for Fair Admissions versus UNC. So these are both challenges to affirmative action programs in higher education. The challengers argue that the school's consideration of race as part of a holistic review of applicants that seeks to build a diverse student body constitutes unlawful discrimination on the basis of race under both the Equal Protection Clause of

the 14th Amendment, which applies to public universities, and also Title VI of the Civil Rights Act, which applies to all universities that accept federal funds like Harvard. As we've explained on some of our earlier episodes, the court has repeatedly affirmed the constitutionality and lawfulness of affirmative action and race-conscious admissions over the last 20 years, including most recently in 2016 in Fisher versus the University of Texas, and before that in 2003 in Grutter versus Bollinger, a challenge to the University of Michigan Law School's admissions policy. But now, starry decisis is actually scary decisis. That is because the court obviously wanted to hear these on Halloween so that they could dismantle precedent in the spookiest fashion imaginable.

You kidders, you pranksters. So we'll get into the details of the argument. But just as a 10,000-foot overview, the arguments had a real everybody knows we're going to overrule Grutter and be in a post-affirmative action world flavor to them. A lot of the justices' energy seemed to be trained on answering what will universities be able to do to assemble diverse student bodies after the court overrules Grutter. But overruling Grutter just seemed to be a foregone conclusion. And with that foregone conclusion established, right out of the gate, Justices Sotomayor, Kagan, and Jackson, our hobbled but indefatigable minority, boxed the lawyer for students for fair admissions into conceding all of the ways that universities can actually consider race in admissions after the court overrules Grutter. So these justices led the lawyer for students for Admissions to state something like the following position. You cannot have applicants check a box that indicates their race, but you can have

applicants write essays about their family histories, about their own history, even about how race influenced or affected them or their family, like an experiential component of race. So it appeared that the Students for Fair Admissions lawyer conceded that this would be constitutional. But then he kind of took it back a little. So there were some very telling statements which suggested that Students for Fair Admissions don't necessarily think that all experiences should be weighed equally in the admissions protocol. So for example, there's one very telling exchange with coach slash Justice Kavanaugh, where the coach asked, could a college give a plus to the descendants of slaves? Would that actually be race neutral? Here's Mr. Strawbridge's response. I think descendants of slaves is a very difficult question because it's so highly correlated with race in the history of our

country. I'm not sure that any college has proposed that kind of a preference. Well, I know we have to think forward about what will happen if you prevail in this case, and that seems a potential, so I'm curious about your answer to that question. My instinct standing here is if that were the only basis, then that very quickly starts to look like just a pure proxy for race. It would obviously depend on the actual program as it was implemented. Wow. Exactly, sir. It is so fucking weird that slavery is so highly correlated with race in the history of our country. Wow.

I mean, this to me, this is one of the clips that has been replaying in my mind. It is almost like a parody and an insane version of the colorblind theory. Like the idea that because slavery is about race or race discrimination is about race means that universities, employers, public institutions cannot acknowledge slavery and race discrimination because they're about race, like the circularity, the insanity of it. It's totally tautological. It's totally tautological. It is. And stupid. And stupid. I mean, let's just be honest. This was, again, it's anti-black and it's pro-stupid. We will get into the different shades of anti-Blackness throughout the oral argument. It's a spectrum. It's a spectrum.

Devaluing Black history, Black experience into different manifestations. But this was one example of it. Sensing that allowing individuals to talk about their experiences as part of the admissions calculus would not further his desired project of keeping minorities in a box. Sam Alito attempted to step in with this microaggression, but happily, our girl, good sis Elena Kagan, was not having it. So let's listen in. Mr. Strawbridge, let me give you a hypothetical along the lines of some of what you've been questioned about already. Suppose that a student is an immigrant from Africa and moves to a rural area in western North Carolina

where the population is overwhelmingly white. And the student in an essay doesn't say this, I was subjected to any kind of overt discrimination, but I did have to deal with huge cultural differences. I had to find a way of relating to my classmates who came from very different backgrounds. Would that be permissible? I think that that would generally be permissible, because the preference in that case is not being based upon the race, but upon the cultural experiences or the ability to adapt or the fact to encounter a new language in a new environment. The race is part of the culture and the culture is part of

the race, isn't it? I mean, that's slicing the bologna awfully thin. I mean, the goal to suggest like we're going to police because we think the Constitution is somehow draws a line that permits certain kinds of stories and doesn't permit others, or that just there's a world in which race can be cleanly severed from culture and experience and history is just truly shocking to me, even as we continue to feel like we are beyond the capacity to be shocked. I remain capable of feeling shocked. Maybe this is my problem. No, no, no. If we had taken bets on who would offer the rural African hypothetical slash microaggression, I think we all would have said our boy, Sam Alito,

the progenitor of the rural African hypothetical. This is another one that I was like, for serious, really? But you know, seriously, like credit to Elena Kagan for being like, I'm sorry, sir, what the fuck did you just say? Like, it is sometimes hard to in the moment when someone says something that galling and illiterate to come up with something to say. And I guess maybe working with him for like the last decade has given her some experience with this. But wow, this is the moment where I really wanted black Twitter and law Twitter to come together in a kind of Voltron style amalgam and like, like black Twitter would have dragged him for filth for this. I really wish they'd been there.

I did not see this clip really circulating. It was wild. Like, I mean, genuinely, like, it's obviously culture. Like, the disorientation is cultural. It has nothing to do with race at all. I, Sam Alito, the expert on race, law, and culture can tell you. Another question that came up about a post-affirmative action world was, if affirmative action falls, what else might similarly be dismantled? And Justice Barrett seemed particularly concerned with the prospect of affinity groups like BALSA, the Black Law Students Association, or alternatively, affinity housing. And she did underscore she was principally concerned with affinity housing. And so this, I mean,

when her concern for it, was that like she thought it was impermissible or she was just questioning whether this would be the next challenge? I didn't know, but I definitely got the sense that Maison Francais wired Harambee House tired. Can we also take a beat for all of the people who were suggesting somehow that she might be more open to affirmative action because she is the mother of adopted black children or that Brett Kavanaugh might be more receptive to pro-affirmative action arguments because he's hired a lot of diverse clerks. I don't know that we saw any kind of concession on this. I mean, I don't know that they necessarily signed up for the Alito Thomas project, but they did seem skeptical. Definitely. Although I do think Barrett was sort of a little hard to read kind of throughout. I definitely don't think there's any reason to believe she crosses over, but I think she wasn't really showing her hand. I mean, I think if you're talking about affinity housing,

you're... But it is possible to... Yes, of course, you're already in a post-Gruder world, no question. But at least there, I think, is the idea that it is pretty clear where Sam Alito stands on Harambe House. I think that's something we know. And I think she may be seen to be... Not going, not invited. Right. Yeah. This gets back to something, Melissa, that you have written about, which is kind of the selective accusations and invocations of identity politics and how the Republican appointed justices often leverage something that looks, sounds, walks, talks an awful lot like identity politics to insulate themselves from accusations that they would revisit affirmative action or

that they would overrule Roe versus Wade by saying, I've hired the all-female class of law clerks, or I have hired a diverse slate of clerks. And the focus on what comes after overruling Grutter does not imply that the Democratic appointed justices were not resisting the end of affirmative action and the court overruling Grutter. Dear reader, they were not going to go down without a fight. If they know there's a majority to overrule Grutter, and they do, they were still fighting mightily to stanch the bleeding. So both Justices Sotomayor and Jackson really wanted to drill down on how exactly race is being used in the admissions programs in UNC, where Justice Jackson was part of the argument. But then later, this was repr used in the admissions programs in UNC, where Justice Jackson was part of the

argument. But then later, this was reprised in the discussion of Harvard's admissions policy. And Justice Jackson in the UNC argument especially focused on this question of who exactly has been injured by the use of race. And she notes that the fact findings of the district court suggested that race was not a determinative factor here. In fact, race was not an automatic mechanism of getting any particular person in. There were like 40 different factors in play. And so it was hard to sort of isolate and identify race as the determinative or dispositive factor. And so she really pressed on this. And the students for fair admissions lawyers kept wanting to describe both programs as solely about race, just race, race alone.

And both Justices Sotomayor and Jackson repeatedly pointed out, no, holistic means holistic. Like, there's a bunch of stuff here. It's never about race standing alone. And there was one seriatim exchange that Justice Jackson had with the North Carolina Solicitor General that just walked through exactly what the process looked like. She first asked him, what is the common form? You know, that's just something all universities use. That's not something specifically to North Carolina. Then she asked, what does the common Forum do? It just asks applicants to tell the school about themselves. One of the things that an applicant can tell a school, right, is

what race they are. Then she asked him, does that mean anyone gets an automatic point or an automatic boost, depending on what they say? And, you know, he emphatically said, no. You know, does this mean anyone gets in automatically? You know, again, the Solicitor General emphatically said, no, does this mean anyone gets in automatically? Again, the Solicitor General emphatically said, no, this is a holistic review. And I think it was important to have that explained and spelled out in the argument. I love this whole exchange because it was like she sort of stepped in and like, you're doing an OK job, but I would do a phenomenal job of lawyering this case. And so I'm going to do that. I'm going to limit you to yes or no answers, but I'm going to ask all the questions.

I'm going to basically lawyer your case for you. So just buckle up, sit back, have a coffee, and just say yes or no. Thank you. And she then was literally the most valuable advocate for that whole portion. Best oralist. She's amazing. Best advocate award goes to KBJ. The SG had a couple of exchanges like that. She was fantastic. We'll talk about her argument,

but there were a couple of long exchanges. I think one was to my aura in which she said, yes, yes, yes, yes. But she knew immediately to just let it go. Ryan Park was like trying to say words and she was like, no, no, no more words. Your words are done. You get one word. It is yes. Bye-bye. And Ryan Park, for people who didn't listen, is the North Carolina Solicitor General, one of the people arguing, along with the federal government's lawyer, Elizabeth Prologger, in defense of the UNC.

And then later, just Prologger in defense of Harvard. But so, you know, I totally agree. Gosh, KBJ, we could just talk about her performance basically for the entire episode. But it's like that exchange that we just talked about was really so focused on the details, right? The factual record in this like, you know, longtime district judge way. And it's just such an incredibly valuable perspective, she adds. But she also dominated sort of at history, high level kind of conceptual questions. She was just brilliant. So we'll get into more.

But in addition to kind of that focus that she kind of brought to the facts. Can I ask a question? Of course. If Stephen Breyer had been on the court for this argument, would he have invoked history in the same way that she did? It would have been so fundamentally different. I think so too. I mean, no shade on Justice Breyer. I think he's added a lot to the discussion over the years. But I think there is something singularly important about having the voice of a black woman who has literally been raised in integrated institutions that have relied on affirmative action in the room. Not just in the room, like just dominant in the room. Dominating the room. And I don't mean like in terms of asking more questions than anyone else. She is like one of the most active questioners, but just asking the most penetrating, most,

the most twirling on her haters, literally twirling on her haters. Yeah. So as Justice Jackson really drilled down in the history in the Merrill oral argument about the Voting Rights Act, which we talked about a couple episodes ago, here actually Justice Sotomayor and also Justice Kagan talked about the 14th Amendment and specifically the race-conscious history of the 14th Amendment. And Justice Kagan asked the Solicitor General to talk about that. So maybe let's play that clip here. One notable thing about the argument here is that on both sides, there's been very little discussion of what originalism suggests about this question. And so I just want to ask, what would a committed originalist think about the kind of race consciousness that's

at issue here? I think that an originalist would think that this is clearly consistent with the original understanding of the 14th Amendment. The universities have come forward with powerful evidence that surrounding the time of enactment of the 14th Amendment, there were federal and state laws that took race into account for purposes of trying to achieve the central premise of the 14th Amendment to bring African American citizens to a point of equality in our society. And I think what's so notable if the court is focused on history here is that Petitioner has come forward with essentially no history to support this colorblind interpretation of the Constitution that would make all racial classifications automatically unconstitutional. There's nothing in history to support that.

So the Students for Fair Admissions lawyer with maybe the hottest take of both oral arguments said that the Freedmen's Bureau was not about race, but affirmative action is. I just want to pause on this because the Freedmen's Bureau has freed men in the title. Yeah, but he really well actually did the title. No, like note the inconsistency here. This is the same guy who was talking about how slavery was too closely correlated with race. But the Freedmen's Bureau, which was literally about the people who had been freed post-slavery, is not. Not about race. But so as he noted, yes, but the full agency was titled the Bureau of Refugees, Freedmen and Abandoned Lands.

And he focused on the extremely determinative term refugees here. Like it was really about refugees. And in reality, I think he probably should have just focused on abandoned lands. Yeah, he should have just pivoted. We all know that's really what this bureau is about. Yeah, totally. The lands, the abandoned lands. And you know what? Who doesn't have a race? Abandoned lands. Abandoned lands. Race neutral. Land is neutral. Not Black Acre. Except of course it wasn't. No. Black Acre is definitely race conscious.

Yeah. But since we are talking about the history, right, we should maybe mention a couple of things from the amicus brief of the professors of law and history that I think we actually mentioned briefly on our last episode with Janae Nelson. So that brief speaks, I think, really powerfully to this question of whether the Civil Rights Act of 1866, which, you know, whether it was indeed race conscious, which apparently is an issue we need to clarify in the year 2022, as we approach the end times, the end of reality issue we need to clarify in the year 2022 as we approach the end times, the end of reality. So just to make things clear, this is what the historians tell us. The benefits of these ameliorative acts and similar policies were not exclusively available

to formerly enslaved people. Rather, as a matter of express policy or practical implementation, they were generally open to all blacks, not only to recently freed slaves, and were adopted over repeatedly expressed objections that such racially exclusive measures were unfair to whites. So those objections were raised. They did not carry the day. The actual text of the Enacted Civil Rights Act of 1866 explicitly acknowledged that white citizens had certain rights and were treated as a privileged class. And there was a requirement that non-white citizens be permitted to enjoy those rights. President Andrew Johnson vetoed the act in part because he viewed it as providing Black citizens with special treatment relative to white citizens. The Reconstruction Congress

rejected these arguments and overrode President Johnson's veto. But of course, this argument seems to be the revenge of Andrew Johnson. I felt like that's what we listened to for over five hours on Monday. Because it is still time to teach some lessons. Let's talk about that veto message again, so you can just kind of hear some of the parallels between the objections to the Civil Rights Act of 1866 and these ongoing challenges. So Andrew Johnson vetoed the bill because he claimed that, the institution of slavery has been already effectually and finally abrogated throughout the whole country. I am not, therefore, able to discern in the condition of the country anything to justify a continued need for the Freedmen's Bureau. He goes on, the idea on which

the slaves were assisted to freedom was that on becoming free, they would be a self-sustaining population. Any legislation that shall imply that they are not expected to attain a self-sustaining condition must have a tendency, injurious alike, to their character and prospects. One year after the Civil War, get over it, right? Like, that is the message. Stop whining. Move on with your lives. Slavery's over.

What are you whining about? You're free. Go be free. I'm sorry. This whole argument was like a macro crush. Yes. Anyway, maybe let's now turn to some other nuclear moments during the argument when it was once again clear that the Democratic appointees were not going to go gently into that post-Gruder night. They revealed, quite honestly, that they are truly in a class, literally in a class, all by themselves on this court. So again, cue the usual jokes about who the actual beneficiaries of affirmative action are. Spoiler alert, it's not KBJ, SS, or Elena Kagan. Justice Kagan,

also known as good sis Elena, decided to drill down on how Students for Fair Admissions supported race-neutral criteria that excluded people of color from college and how they would allow colleges and universities to become extremely unrepresentative. So let's play that exchange. I guess what I'm saying is your brief, and this is very explicit in your brief, is like it just doesn't matter if our institutions look like America. You say this on page 11 in your reply brief. And I guess what I'm asking you is, doesn't it? I mean, doesn't it? These are the pipelines to leadership in our society. It might be military leadership. It might be business leadership. It

might be leadership in the law. It might be leadership in all kinds of different areas. Universities are the pipeline to that leadership. Now, if universities are not racially diverse, and your rule suggests that it doesn't matter, well, then all of those institutions are not going to be racially diverse either. And I thought that part of what it meant to be an American and to believe in American pluralism is that actually our institutions, you know, are reflective of who we are as a people in all our variety. I like this energy, like, you say this, but seriously, bro? I just really loved that it was, you know, Kagan is obviously such a careful lawyer's lawyer in so many of these arguments. But here she was just like,

there are substantive values in the mix and they are unavoidable. And you either do have a view that pluralism and diversity are values that we want to pursue, or you don't, and you just don't care. You may even think the world is better without those values centered. But let's be explicit about whether we think those are affirmative goods or not. And it seems to me that you all, my colleagues on this bench, don't think those are affirmative goods. And that was, I thought, a really valuable and clarifying moment. Yeah, like requiring them to own it. Yeah. So along these lines, Justice Sotomayor brought up how every simulation that Students for Fair Admissions offered at the trial court level, you know, about how admissions would work under their proposed criteria, showed dramatic decreases

in enrollment by Black students and how their proposals were asking us to take a step backwards. And I think that is what Justice Kagan was in part alluding to. Justice Jackson had just a brutal, eye-popping question slash hypothetical that I think really blew this case wide open and really changed, I think, the tenor of argument once she put it in the mix. So recall from our opening that the plaintiffs here seem to think that the Constitution says you cannot check any boxes regarding race. But it's probably fine, maybe, with applicant essays that tell personal stories as long as they're not closely correlated with race. So Justice Jackson asked about the implications of student for fair admissions arguments for two hypothetical applicants. Let's play that.

So what I'm worried about is that the rule that you're advocating, that in the context of a holistic review process, a university can take into account and value all of the other background and personal characteristics of other applicants, but they can't value race. What I'm worried about is that that seems to me to have the potential of causing more of an equal protection problem than it's actually solving. And the reason why I get to that possible conclusion is thinking about two applicants who would like to have their family backgrounds credited in this applications process, and I'm hoping to get

your reaction to this hypothetical. The first applicant says, I'm from North Carolina. My family has been in this area for generations since before the Civil War. And I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that. And given my family background, it's important to me that I get to attend this university. I want to honor my family's legacy by going to this school.

The second applicant says, I'm from North Carolina. My family's been in this area for generations since before the Civil War, but they were slaves and never had a chance to attend this venerable institution. As an African American, I now have that opportunity and given my family background, it's important to me to attend this university. I want to honor my family legacy by going to this school. Now, as I understand your no-race-conscious admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count. The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second

one wouldn't be able to because his story is in many ways bound up with his race and with the race of his ancestors. So I want to know, based on how your rule would likely play out in scenarios like that, why excluding consideration of race in a situation in which the person is not saying that his race is something that has impacted him in a negative way, he just wants to have it honored, just like the other person has their personal background, family story honored. Why is telling him no not an equal protection violation? Again, this was like an earthquake, like shake it like an earthquake. She literally blew this up. Yeah. I have to hear, just mention the work of my colleague,

Elise Boddy, who has an essay on the indignities of colorblindness that explains how a colorblind approach to the Constitution devalues and adopts an approach that requires people to erase and undervalues certain identities because it doesn't allow individuals to talk about their race as an aspect of their identity. And, you know, I took Justice Jackson's question as kind of an example about like how that particularly happens. Yeah. I think she was saying that too is an equal protection violation. She also, I think, was suggesting it might actually be viewpoint discrimination, which, you know, maybe that was seeding the prospect of maybe a First Amendment challenge. Like,

there are other constitutional questions involved with this proposed race-neutral landscape that students for fair admissions would like to see. Yeah. I also wanted to know whether her question about the family history of UNC might have been inspired by Dr. Pauli Murray's family history. You know, the white side of Dr. Murray's family went to UNC for a few generations. And Pauli was rejected from UNC with UNC telling them it was because of Pauli's race that they would not admit Pauli. So I was kind of curious whether the hypothetical was partially inspired by that. Maybe it's an Easter egg. Maybe it's an Easter egg. Yeah, we should say because it was a while ago.

We had the filmmakers from the I Am Pauli Murray film on the episode, maybe two years ago, at least a year ago. And they include in the film the actual image of the letter that is very explicit, like, sorry, we don't accept black applicants. And it's from UNC. So, yeah, I think it's very possible that that was a subtle reference to Pauli Murray. So Justice Kagan had another off the cuff, just brutal real time reaction to an advocate's response. Let's play that here. Colleges now when they apply gender neutral criteria, get many more women than men and assume that that continues to be true so that using gender-neutral criteria you know men are 30% of a class

or 35% and a university said you know that's neither healthy for our university life nor is it healthy for society that men are so undereducated as compared to women. Could a university put a thumb on the scales and say, you know, it's important that we ensure that men continue to be, receive college educations at not perfect equality or, you know, but like roughly in the same ballpark? Well, of course, under this court's precedent with respect to the Equal Protection Clause, that is subject to a somewhat lesser level of scrutiny than racial classifications are. So even if they could justify them under this court's Equal Protection jurisprudence,

I don't think it follows that they can justify racial classifications. Yeah, I mean, you're right about the levels of scrutiny, but that would be peculiar, wouldn't it? Like white men get the thumb on the scale, but people who have been kicked in the teeth by our society for centuries do not? Well, of course, our position is that white men could not get a thumb on the scale. That sounds like a racial classification. Men could, perhaps, but not white men. Uh-huh. So was this like a very subtle rebuke of incel culture? The like dripping disdain of the hypothetical that like maybe society would have an interest in avoiding men being undereducated. educated um was just like while she looks while she looks to her left looks to her right and it's like any problems with under education lack of education here i don't know um and then coupled

with uh oh uh-huh yeah you know after the lawyer tells her that men but not Black people are allowed to benefit from affirmative action, it was really something. And because our listeners really enjoyed us highlighting Justice Kagan interjecting, not really when a lawyer asked if he could interrupt or stop her, we wanted to, along those lines, call attention to another moment during this oral argument, which we'll play here. It's just fighting the question. I mean, the question is, is there a limit beyond which you would say, oh, yes, if you can't achieve that level of diversity with race-neutral criteria, then you're allowed to use race-conscious criteria? I don't think there's any level that justifies explicit racial classifications.

But I'm going to fight the hypothetical one more time if you'll let me. No, I don't think I will. So let me just go on and ask you a couple of other things. Yeah, I don't think I will is like Justice Kagan reclaiming her time and like she is not here for this bullshit. Sit there and eat your food.. Sit there and eat your food. Just shut up and eat your food. Yeah, no, I don't think I will.

I'm going to try that in class, see how that goes. Exactly. Yeah, no. No, I don't think I will. Kagan did have one lighthearted moment about Dartmouth. Let's play that one here. I mean, I think that's our point, that SAT scores would go from the 99th percentile to the 98th percentile. That's not sacrificing academic excellence. That's moving Harvard from Harvard to Dartmouth. Dartmouth is still a great school. They get

98th percentile SAT scores. You've got to make some sacrifices. I don't. I marry those who love it. I mean, we stan a well-placed Daniel Webster quote. I mean, the opportunities for it are so – What's a Daniel Webster quote? It is a small college, and yet there are those of us who love it. Let me see. Dartmouth College versus Goodwood. Yeah, that's Daniel Webster.

You're right. Okay, sorry. I didn't know that. I mean, Jeopardy! Teen Tournament contestant here. I wasn't in any way challenging you. I was just asking to be educated, and now I am. You will not be one of those undereducated men.

So I wanted to say, Elena Kagan, whatever you're pitching, we're catching. We love these Daniel Webster quotes. We love it. There was still more from these oral arguments that we did want to talk about. So maybe let's keep ticking through. immigrants from Italy. So interesting. Anyway, Patrick Strawbridge, the lawyer for students for admissions in the UNC case responded that yes, as long as these were not limited to certain countries, I'm guessing certain countries from the dark continent. So I think we can prepare ourselves for a spate of scholarships for the descendants of Christopher Columbus, but probably not for the descendants of Frederick Douglass. What do you think? I mean, again, descendants of Christopher Columbus, not about race, but descendants of Frederick Douglass is about race, or at least,

you know, the races that we don't want it to be about seems to be the undertone, you know, the anti-blackness of this oral argument. Yes. Immigrants from Italy, great. Immigrants from Ethiopia, maybe not. Immigrants from, quote, Africa. See what I did there? Africa. Africa. Africa.

No Carolina. Africa. Just the Africa. Yep. So this exchange called to mind something from the Voting Rights Act argument we discussed with Duell Ross when he was on the show. And that particular moment from the Voting Rights Act argument was also revealing about the relationship between colorblindness and anti-Blackness. In the Voting Rights Act case, recall, Alabama is arguing that they did not draw another majority Black district because they wanted to keep together a particular community of interest, namely descendants of French colonial heritage. And they were arguing that they could do that, but that they could not try to keep

together Alabama's Black community as a community of interest because somehow colorblindness allows them to consider and protect descendants of French colonial heritage, but not Black people. So sticking with Kagan for just another minute, there was a moment at oral argument that felt like it was a call out to Brett Kavanaugh, even if not explicitly, right? And that was Kagan basically getting the students for fair admissions lawyer to say that Kavanaugh's law clerk hiring practices were unconstitutional. If you're a hospital, and you serve a diverse group of patients, is it super important to you to have a diverse set of doctors? I don't know the evidence about the diversity of doctors and patients or anything about the medical field. It wouldn't matter, yeah.

Okay, or maybe it would, you don't know. If you're a police department and you serve a diverse community, is it super important to you to have a diverse set of police officers? I mean, I believe that's important if there's good evidence that a racial classification was needed. That has nothing to do with the educational benefits of diversity in universities. That's the interest that Grutter upheld.

Do you think that if you're a law firm or if you're a judge, if you're a judge and you want to have a diverse set of clerks, do you think a judge can't think about that in making clerkship decisions? Absolutely can think about it. The court's decision in Feeney says knowledge of race is not the violation. It's using it as a factor to distinguish them. Let's say a judge says, I want a diverse set of clerks. That's, you know, I want clerks who would, you know, grade on any number of

criteria, but I also want a diverse set of clerks. So over the years, people will look at that and they'll say there are Asian Americans there, there are Hispanics there, there are African Americans there, as well as there are whites there. Can a judge not do that? I mean, I think that's a admirable goal. I don't think a judge not do that? I mean, I think that's a that's a that is a admirable goal. I don't think a judge could implement that goal by putting a thumb on the scale against Asian applicants or giving a big preference to black and Hispanic applicants. So Stephen Mazie, who's the legal correspondent for The Economist noted on Twitter that Justice Kavanaugh seemed to give Justice Kagan a bit of a surprised look when she was asking

these questions. And just for those listeners who might not recall, Justice Kavanaugh's hiring practices from his opening statement for his Supreme Court confirmation hearing, he said as follows, quote, a majority of my 48 law clerks have been women. More than a quarter of my law clerks have been minorities. And I have had far more African-American law clerks than the percentage of African-American students in U.S. law schools. Was that meant to be like a snarky kind of thing?

Or was she genuinely kind of – I thought she was sort of like it was an opening to him. Like you profess to prioritize this. Like is this an opportunity for you to kind of join us in moderating whatever these two, Clarence and Sam here, are trying to do. Yeah, yeah. Or just, yes, to highlight to him and to the world that the logical extension of the position that these plaintiffs are making is that it was constitutionally impermissible for Kavanaugh to have prioritized diversity in his chambers, you know, even if not like in any enforceable way, but like in principle. And at least if he signs on to Sam Alito's, I don't even want to speculate about who's writing this majority opinion. Let's not, I can't do it today. Oh, Clarence Thomas. I think,

isn't it Clarence Thomas? Yeah, I guess you're right. It's Clarence Thomas. That's right. Yeah. We haven't even talked about him. We're going to get to him. We'll get there. We'll get there. Yeah. But I just want, I think she wanted Kavanaugh to at least have in mind that he has done and said things that are really not very different from what UNC and Harvard in their admissions policies have done. And obviously, in Kagan's view, the Constitution has no problem with that. And I think she thinks in his heart of hearts, maybe Kavanaugh understands that it's permissible to. And so I think you're right. It is an attempt to appeal to whatever shred of decency remains in him and open-mindedness. But also in the event that that's unsuccessful, just to kind of remind the world that there's just like rank hypocrisy. Brett Kavanaugh violates the Constitution.

Brett Kavanaugh is a constitutional violation. Okay, so maybe just continuing on in the interest of time you know throughout the argument there was just overwhelming anti-affirmative action colorblind anxiety bubbling up all over with several justices asking when will it end when will this scourge of affirmative action finally end there has to be an end point and it's like, I have missed your similar anxiety and concern about the scourge of systemic racism. But I guess I'll just wait for that to appear, Your Honors. That was so gaslighting in that, like, well, you can't pick an endpoint, you can't name an endpoint. And if you can't name an endpoint, like, we have to just strike the whole

thing down now. And just like, you all constructed this idea of an endpoint in Grutter with this like sunset after 25 years idea. And to hold the admissions officers who continue to reside in a structurally racist society responsible for the fact that racism hasn't been solved and sort of say, well, it's not our fault. And so we have to strike down your program just like felt like the ultimate circularity and gaslighting and it came up again and again. What about Justin Driver's take on this that, you know, perhaps there is a compromise here where the justices give some sort of long leash reprieve for winding down affirmative action based on the 25 year language dicta in Grutter? I mean, is that possible? Plausible? I did not think I also did not think going into that. I mean, have that possible, plausible? I did not think so. I also did not think so. Going into this. I mean, have these justices shown that they are like open to compromise? I mean, sure,

Justice Kavanaugh asked about the sunset, but like the flavor of his questions was basically like, well, if we overrule it now, we're effectively ending it for the class of 2028. So we're basically satisfying the 25-year window. Again, him invoking being faithful to precedent, like, is this a fucking joke? It's just ridiculous. It also felt like it a little bit cut in exactly the opposite direction, which was that because there was the expiration date, if they really credited the 25 year part of Grutter as part of the holding, basically, they don't even really need to overrule Grutter. They're just like giving it. They would announce that Grutter

had abandoned the use of race conscious remedies effective 2020 and they're reaffirming it. And so they're like in your end of term scorecards, this isn't even an overruling of a precedent case. It was a timed obsolescence. It's like the

Apple phone. We're coming out with a new race neutral model. A little early, two years early, really. Get your Apple phone 14 coming soon from Brett Kavanaugh. Anyway, the Chief Justice also had a question that again, as a black person, I was just sort of like, my dude, what? So he asked this question, what about the black kid who grew up comfortably in Grosse Pointe, Michigan? So Grosse Pointe is a very fancy suburb of Detroit. And I imagine comfortably means this kid has parents with some cash. And his point was, this kid's views are indistinguishable from a

white applicant. Why should he get the benefit of having his race considered? Why is it fair to give him a preference for this? And again, as a Black mother who tells her kids never go into stores with a backpack on and always make sure you get a receipt before you leave, I just think you can't understand the way in which wealth cannot insulate you from the impact of racism. And trust me, black people are trying to insulate themselves, but it's just so overwhelming in so many cases, how you're perceived and how you move in the world. So please do go on, John Roberts, ye who know so much about the black experience, sir. Again, where was black Twitter on this? Because I think this would have been like, people would have been like, for serious? Like,

how about we go shopping at an expensive store together and see how that plays out? Yeah, so sort of incredible disconnect from lived experiences on display from Roberts and many other justices. Another kind of mode of sort of gaslighting or bad faith questions to my mind, in addition to, well, racism isn't over, ergo, we have to strike these programs down, were kind of a line of questions that seemed born from the Supreme Court itself having kind of pinned the future of affirmative action to the diversity rationale. Basically, in Grutter, right, the court says the only constitutionally permissible justification for race consciousness in admissions is the pursuit of diversity both in classrooms and to create diverse pipelines of leaders and business and the military and other places in society, but not in order to remedy a history of discrimination, although there are pockets of that kind of remedial justification that may survive elsewhere for a little bit longer, who knows. But at least in higher education admissions, diversity is the only thing that's compelling enough to justify race consciousness.

But so the justices sort of use this kind of ganja logic to say, well, you know, but you're not even relying on a remedial justification. And so if all you're doing is this kind of amorphous pursuit of diversity, we're not even totally sure what that means, that can't be good enough to justify the kind of racial classifications that these programs represent. And it's like the reasons the advocates are not offering remedial justifications and the schools are not relying on them is because the court's cases have ruled them out, even though that's a rationale that makes a tremendous amount of sense here. So they were just boxing these advocates in in a way that just felt so bad faith and unfair to me. It did feel like a lot of gaslighting. And Neil Gorsuch actually had something very interesting to say here. So he was talking about the Harvard plan that Justice Powell talked about in Bakke.

So this was like the farm boy from Iowa could be admitted to Harvard and, again, diversity. But he actually pegged the origin story of the Harvard plan not to Powell or Harvard in the 1970s, but rather to Harvard in the 1920s when the president of Harvard, Henry Cabot Lowell, used this questionnaire that was meant to sort of identify certain kinds of characteristics as a means of limiting the enrollment of Jewish students. And this was such a classic Roberts Court move, like creating a new origin story for this practice as a means of rooting it in racism and undermining it going forward. So I thought this was very much like the eugenics and abortion move, the move that they did in Ramos with regard to the non-unanimous jury rule. And he was right there. Isn't this really always been about racism? And equating these race-conscious measures that are designed to achieve racial integration as the same as race-conscious measures once used to exclude Black and Jewish students is, to my mind, disrespectful to basic accounts of history and intelligence.

Because the school wants to use holistic review and diversity for bad purposes, that means all holistic review and diversity is bad. I mean, like, law was used to subordinate and subjugate people. Does that mean like all laws are bad? It's this reductive, ridiculous mockery of analogy and history that endlessly frustrates me. But it also, I think, ties into like another theme of the arguments, which was basically like, fuck the facts, fuck the fact finding, right here are my feelings, because it's clear the justices were willing to just kind of discard the rules about factual findings and deference. You know, there was an actual trial here where the trial court made findings about the fact that there is no

discrimination against Asian American students and other things. But still, Justice Alito, Justice Gorsuch, and the other justices are like, well, I have some hunches about what's going on here. So like, I'm just going to offer you those. Well, interestingly, there was one justice who didn't really care about anybody's feelings, whether on his side or the other side. And so Justice Thomas made clear, he actually said this a couple of times, like, I don't care about feelings. I don't care about how you're supposed to feel in college. You are supposed to go to college to learn and get an education. So I want to know, one, what is diversity, which also seemed like a gaslighting kind of question. And two, what are its academic

benefits? And when the advocates tried to talk about this, you know, improved understanding of different perspectives, like opening lines of conversation, he was like, nope, nope, nope. How does it make you a better organic chemist? That is what Justice Clarence Thomas would like to know. Where does it help you understand how to divide a molecule? It doesn't. Thank you. And that's why it's over. It was a really interesting and, again, an intergenerational comparison between Jackson and Thomas was really striking. It's just sort of like the guy who grew up in segregated institutions, the woman who

grew up in integrated institutions, two very different views of school. This kind of gets to something we were talking a little bit about before recording, which is like a very myopic account of what schools and education is for. Like going to school is not just about knowledge you learn to recite or apply on a test or like at a subsequent job, but about how you perceive the world around you, how you process facts, how you interact with other people. That is an important part. How you understand the world processing you. I mean, this was the point of Brown, like little kids who go to segregated schools growing up feeling that they're inferior. Like this was the bottom line in Brown. Yeah. And if the justices are effectively like creating

a future generation of schools that will not provide people with the education that like more pluralist schools, more multiracial schools does than like our democracy and like our polity is going to be weaker for it. Yeah. You know, Thomas was so kind of derisive and dismissive of the in-classroom benefits of diversity. I think it's pretty clear they're both are the in-classroom benefits, but much more broadly, like people after they finish school, like our participants in democracy, and this is a moment in which, as we've talked about in the podcast repeatedly, democracy is in pretty rough shape. And so to kind of compound the dismantling of a lot of the structures of our democracy by actually really like resegregating our institutions of higher education

learning, or at least like, you know, rolling back immense progress on integration, like nowhere near enough progress, but at least these schools have definitely made some progress, is just, I think, like another huge flashing kind of warning sign in terms of the long-term health of our democracy. So the effects are on the individual students, on classrooms, on institutions, and, you know, kind of our democracy more broadly, if the court goes the way it's almost certain to go. And again, like there were factual findings about the benefits of diversity and about like what diversity is in this case. And in particular, the counsel for Harvard, Seth Waxman, would routinely say something along the lines of, here's what the record shows. The district court found this specific fact and the appellate court affirmed it on this page of the record. And then the justices

would just respond with, well, just accept my version of the facts for purposes of this question and answer my question. Let's assume this is a quota system or let's assume there is a self-sustaining endowment. And it's like, I understand that this case has particular facts, but what if it didn't? And like, what if I'm just like occupying this alternative universe? What about then? Yeah. I mean, maybe the best encapsulation of that was when Waxman said, look, the district court found, considering all the evidence, that there is no credible evidence that corroborates the improper discrimination suggested by SFFA's interpretation of the personal rating. And then Justice Alito was like, all right, well, I'll try one more time and just like pressed ahead like he didn't even

like that answer didn't even penetrate. Yeah. It's also worth noting that they were weirdly very chummy when Waxman got to the lectern. He is, of course, a former Solicitor General, so a repeat player here. But what was notable to me is that there were a couple of times when some of the male justices interrupted him and apologized for doing so. And I've actually never heard them apologize to Solicitor General Prelogar when they've interrupted her. So I thought it was notable. I actually think there might have been an apology to Prelogar, this argument. This argument?

Yeah, yeah. I may have missed it. I wasn't following. Was it in the Harvard case? I didn't. There were a couple of interruptions in the UNC case. Yeah. All right.

All right, my bad. It was like six hours long. I don't know about you, but I had to step out to attend to Halloween stuff for my children. And so I listened to 95% of it, I would say, in real time, but not 100%. My point was simply, one, there's a gender disparity, and certainly in people represented at the lectern. Also, just a kind of insularity in terms of the sort of clubby feel of the bar. I'm sure it has something to do with culture and not... But not race.

Not race, not sex. Just culture. Or race, gender, probably. Culture. Yep, yep. No, no, no. Culture. It's culture.

It's like race-neutral culture or race and gender-neutral culture. Yep. All right. So Prelogger, you know, despite maybe not getting quite the same chummy treatment as Waxman, was incredible, I thought, in both arguments. opening statement in the UNC case about the national security imperatives of building a diverse pipeline and using race and admissions to do that were necessary in the military academy. So of course, this called to mind the amicus briefs in Grutter that the court found super persuasive, referenced a bunch of oral arguments relied upon in the written opinion that were from a bunch of former military leaders who basically

said, it's absolutely critical that we have a diverse officer corps in order to lead a diverse fighting force. Like the enlisted ranks of our military is very, very diverse. And it is super important that the leadership of our military also be super diverse in order to effectively lead. And so like there's a national security imperative that you not invalidate the military academy's ability to use race in admissions. And I mean, it can't be that the justices completely dismiss that argument. I mean, it may be like literally the Yolo court might be like, well, if we actually need to completely undermine national security because of this warped vision of a colorblind constitution, so be it. Like I don't at all, I wouldn't put that past them. But

I also think it's possible that they will carve something out explicitly that says because of the president's article two powers, military academies in the federal government, of course, it's a federal government, not a state university like UNC. So there are these potential constitutional differences. So we're not touching those schools. I mean, I presume a case involving one of those schools would then end up before the court. So they would just be deferring answering it. But they can't, I don't think, ignore those potential implications of whatever they do here. Well, I think this line of argument had two main points. One was not just an echo of the brief in Grutter, but an echo of the brief that was filed years earlier in Brown, in which the Department

of Defense and the State Department essentially said, we cannot be the United States, a major leader on the world stage while we nurture this climate of apartheid at home. To be moral leaders in the world, we have to desegregate. So I think that was part of it. I also think it was part of the fact that national security interests have been deemed compelling governmental interests that have justified the use of race in, for example, Korematsu, the now discredited Korematsu, see Trump versus Hawaii. So I think there was a lot going on in that exchange. And I think you're right that there likely will be a carve out for the service academies, maybe even, again, she was pushing on the question of ROTC programs on

standard campuses as well. I don't know if it'll go that far, but it did seem like she was getting some traction there. And the reason we know she was getting some traction is because Justice Alito seemed to be spitting mad about the prospect of any kind of carve out for the military. So let's play that exchange. Well, what you say about the military is something that we have to take very seriously. You represent the entire executive branch, including the military. And we have to presume that you are reflecting the views of the military. But what do we do with the fact that the United States was on the opposite side in the Harvard case when the case was in the lower court? And what do we make of the arguments that were made by your predecessor in Grutter? Were they insensitive to the needs of the military?

Only you have accurately represented the interests of the military? Well, let me take each of those questions in turn. With respect to the Harvard case, it's true that the United States participated below on the side of petitioners, but only with respect to the factual record and what we thought, my predecessor thought, the evidence showed in the case on the factual issues. We did not take a different position on the legal interests here or assert a different interest on behalf of the military. With respect to the Grutter case, there, too, the United States did not take a position to call into question whether diversity could qualify as a compelling interest in this context.

Instead, the participation of the United States was confined to the narrow tailoring prong of the analysis and whether race-neutral alternatives were permitted. And my predecessor was asked specifically in that argument whether he thought that the militaries and the academies' race-conscious admissions programs were unconstitutional, and he declined to say that they were. So I do not think that there is a distinction that's been drawn. And it has, in fact, been the consistent judgment of our senior military leaders across the decades and across administrations, including in the last administration, that it is critically important to our national security to have a diverse officer corps. So that has been a constant and a through line here.

He's like, how dare you? What are you saying? The Trump administration didn't care about the military. That simply cannot be. S.G. Prelogger's performance also had this notable moment that we wanted to highlight because it's something we've repeatedly talked about on the podcast, and that is the lack of women at the lectern, the podium, arguing before the Supreme Court. And the Solicitor General invoked that as an example of the kinds of harms that can follow from an unrepresentative institution. So let's play that clip here. If I could, maybe I could just give a, I think a common sense example of that, that I would hope would resonate with this court. The court is going to hear from 27 advocates in this sitting of the oral argument calendar. And two are women, even though women today are 50% or more of

law school graduates. And I think it would be reasonable for a woman to look at that and wonder, is that a path that's open to me, to be a Supreme Court advocate? Are private clients willing to hire women to argue their Supreme Court cases? When there is that kind of gross disparity in representation, it can matter, and it's common sense. It's notable that while only two women were arguing during this sitting, there were the same number of women arguing as Matthews arguing this sitting. So there was parody on to that level. Perfect.

Parody for Matthew. I mean, props to Prologger for making this point. It was like we all know the justices hate to ever have like the mirror turned on them. They hate ever being reminded that they are an institution, like with their own practices and folkways and dysfunctions. And I thought that was really kind of bold of her to turn the spotlight onto them. You could just hear her posture when she said that. She was like, hmm.

Well, it's always perfect. Her posture is always perfect. I mean, it was perfect here. It was. And then maybe one more point on Prologger. So Kagan asked her literally three and a half hours into the argument, which wasn't even near the end of the argument, but to respond to the petitioner's argument that they are the ones that actually are rightfully claiming the mantle of Brown and that Brown versus

Board of Education of its own force essentially invalidates these race-conscious admissions programs. And Kagan rarely throws a really like a softball quite like that to an advocate. Like even when she's sympathetic to a side, I feel like she usually asks pretty tough and sharp questions. But I think she was just like, somebody needs to get this argument on the table. And it is worth, I think, playing Prologuer's answer to that question in its entirety. I think that argument is wrong in just about every respect. There is a world of difference between the situation this court confronted in Brown, the separate but equal doctrine that was designed to exclude African Americans based on notions of racial inferiority and subjugate them, which is this

court recognized with school children affected their hearts and minds in a way unlikely ever to be undone. A world of difference between that and the university policies at issue in this case, which are not intended to exclude anyone on the basis of race or even to benefit particular racial groups on the basis of race, but rather are designed to bring individuals of all races together so that they can all learn together and benefit from that diverse educational environment. And I think it is profoundly ahistorical to say, as petitioners do, that those situations are precisely equivalent. And it also trivializes the grievous moral and legal wrongs of state-sponsored segregation and the enormous harms that millions of Americans suffered under it. One final note, again, going back in time to history, we're going to go forward from Brown and just talk about the moment where

our friend of the pod, Sam Alito, revealed his concerned alumni of Princeton roots. So he asked the following question, which he said was designed to figure out whether an applicant could claim they were actually a member of an underrepresented minority. It's family lore that we have an ancestor who was an American Indian. So I think in that particular circumstance, it would be not accurate for them to say. I identify as an American Indian because I've always been told that some ancestor back in the old days was an American Indian. I really feel like we should have predicted that Sam Alito would try to neg Elizabeth Warren during this oral argument. Like in hindsight, it's so obvious and not to pat our own backs here when we failed to make that prediction. But I do think an important service that we offer the public is just

playing things that Sam Alito actually says at oral argument, just so people know what the hell is actually happening and how the justices are deciding these cases. Because again, summarizing it just would not do it justice. No. And if you had forgotten about the whole Elizabeth Warren Native American flap from a couple of years ago, it was played endlessly on Fox News, which is probably where you heard about it. I'm sorry to our listeners that we're making you listen to these clips, but honestly, it's important. Yeah.

Wow. I literally don't know how I survived that entire five hours with my piece intact, but here I am. By the grace of our Lord, Beyonce, Giselle, Knowles, Carter, I have survived. Okay, so on the day after, the big affirmative action cases were on Monday. The court heard two cases the next day where the court seems poised to make it harder for people to vindicate their rights in federal courts and also harder to correct wrongful convictions. So if you thought things were going to take a turn for the more uplifting in the last was a case called Jones v. Hendricks, a case about whether people who were convicted in federal court because of an error of statutory interpretation can challenge their convictions if the error in their case means they were convicted of something that isn't actually a crime under federal law. You would think this would be an easy one. You would be wrong. This would also affect whether people can challenge wrongful sentences where they were sentenced to more time than the law actually says that they can serve. And as a reminder, in this case, the federal government partly agrees with the petitioner. So the court appointed an amicus to defend the rule of the lower court. Here, the appointed amicus was Morgan Ratner,

who is a lawyer at Sullivan Cromwell. She's formerly of the Solicitor General's Office, and she's a former clerk to Kavanaugh and Roberts. So this was, I, you know, like fixated on these appointments. This was kind of a weird amicus appointment in that the justices do almost invariably tap their former law clerks, but they often do it to give a former clerk a first argument at the court. And Ratner, you know, has already done a bunch of arguments. So I honestly wasn't sure why she got the nod. On the other hand, I suppose she is the reason Prologger wasn't the only woman arguing in the month of November. So that's something. This argument was about as bleak as it could be. You know, my guess is coming out of the

argument is it will be a 6-3 ruling for the court appointed amicus saying people who are convicted of something that isn't a crime cannot file a habeas petition challenging their conviction. And Justice Gorsuch is basically just beside himself with joy, just like proud as a peacock that he is about to impose his innocent people can't file habeas claims view on the entire country. Of course, he pioneered this view as a judge on the 10th Circuit. I wrote about it in a short essay when he was on the short list of nominees, you know, for President Trump's Supreme Court seat. And I was like, you know, this is emblematic of his jurisprudence and his approach to the law. And anyways, don't get me started on that. And then Sam Alito, for his part, is like, Santa, is that you not providing criminal defendants with a remedy? Yes, I'll take that in my stocking, please. In a breath of fresh air for me at the

oral argument, Justice Jackson suggested that the rule of lenity, which is a principle that criminal law should be interpreted against the government and in favor of criminal defendants, she suggested that principle might be applicable to statutes that are about whether to remedy legal violations of the rights of criminal defendants. And I just want to say I want you to live in a world in which that is true. But maybe we can just play a few nuggets on this argument. So let's start with a clip of Justice Jackson basically boiling down the case to kind of a nutshell. Can I just ask one more thing? You said 2255, you sort of agreed with Justice Kagan's premise that maybe the savings clause is generally about when is 2255 not working. And you suggested a couple of situations in which that wouldn't be,

when it wouldn't work because the court is not there or because the nature of the relief is such that you couldn't get it or some sort of technical situations like that. What I'm still not so clear on is why 2555 could not be working if, because of one of its provisions, it's, you know, unconstitutional, or it doesn't allow you, or doesn't allow for actually innocent people to have one clear shot at relief. Like, why isn't that a species of 2255 is not working and therefore you need to be in the habeas lane? Also, free tip, free advice to litigants. Be careful before you try and propose hypotheticals back to the court because it does not always work out so well. So here's a little clip between Ms. Ratner and Justice Kagan. Why wouldn't Congress have just said, and these statutory claims are precluded? I mean,

Congress did not say that. It knows that it has a savings clause. It knows that the statutory claims under the savings clause are going into the habeas court. Why not just say it? So, you know, let me take the saving clause part separate. Why not say it? I think they probably would think it's pretty obvious. When I tell my kids they can have a second snack, but only if it's fruits or vegetables, I don't usually feel the need to say,

but definitely not ice cream. I feel like that's pretty well-informed. Yeah, a different situation. I mean, because whatever. I agree with that. What if they had ice cream before? I agree with that. What if they had ice cream before? I agree with that. What if they had ice cream before?

Whatever H means, I mean, it's referring to 2255 motions. And so you have to make the jump to habeas. And the savings clause tells you when and where to make the jump. And without 2255H, that jump would have been made for statutory claims. So why not say in 2255, and we mean statutory claims too? I just wasn't so sure about analogizing

like giving your kids a second snack to how we should be thinking about whether innocent people should get out of jail was the best analogy. Really depends on the snack, Leah, I mean, if it's like vegetable chips, maybe. And it reminded me of, you know, an analogy we highlighted in a previous opinion of the court about ceviche. So this was from Yellen versus Confederated Tribes of Chehalis.

And the court attempted to analogize ceviche to whether Indian tribes were like eligible for funds under this federal law. And it's just like a weird argument attack that does not always work. But basically, at one point, Alito asked Deputy Solicitor General Eric Fagan about whether it would be too burdensome to require district courts to analyze the traditional scope of habeas. So maybe let's play that clip here. Do you have any concern about the complexity of the rule that you are advocating? If it were limited strictly to a situation like Rahaf, fine. Everybody could understand that. But are you concerned that every federal prisoner who wants to bring a successive motion

is going to claim that this falls within the traditional scope of habeas. And this would be an escape clause that will be invoked again and again and again. And all the district judges are going to have to analyze the traditional scope of habeas and see whether the claim actually falls within that. I mean, I was listening to that with my jaw kind of on the floor because I was like, sir, are you familiar with what you all just unleashed in Bruin? District courts are supposed to be combing historical archives for analogies to rules against like altering serial numbers on guns.

And all of a sudden you're concerned with burdens on district court judges. It seems like a pretty selective concern. Sam? Yes. One district judge, Judge Carlton Reeves, suggested in a recent order that he's considering appointing a historian to help him comb through the record so that he can actually apply the court's historical tradition test from Bruin and assess a Second Amendment claim that's before him now. So the second case in the horror show that was Tuesday is Cruz versus Arizona, which is a case about whether state post-conviction courts can decline, basically to give effect to a Supreme Court decision, because that decision corrected the state court's error that was so obvious that it didn't result in new law. And yet the state court somehow failed to

appreciate the error at the time. So the backdrop here is that the Supreme Court had held in a previous case called Simmons that states have to inform juries in death penalty cases about whether the defendant would be eligible for parole if the jury doesn't impose the death penalty. Arizona did not inform juries in death penalty cases about whether defendants would be eligible for parole, even though Arizona had abolished parole for felonies. Juries were sentencing individuals to death because they thought these defendants would be eligible for parole if they were given a life sentence. So, you know, facially inconsistent with Simmons, Supreme Court finally corrected that error in a per curiam summary reversal. And now the Arizona courts are declining to apply that decision to cases that have become final because they say the error was so obvious that the decision correcting it didn't make new law. This sounds like I have said something wrong in describing the case. I don't think I have. That's really what this case is about.

No, no. The error is going to be when they announce this decision because this case seems to be headed for not great, Bob. I think you will understand what we mean when we talk about this next exchange between Justice Alito and one of the lawyers. So Justice Alito brought the same, assume this is a different case, but with really different facts, energy to the argument, asking the lawyer from Arizona to look at it again, but assume for the sake of argument that the rule has always been what the Arizona Supreme Court now says the rule is, and then asked him, you know, what's your argument now? And it was just, again,

that's not what's happened here. That's not what's going on at all. But you definitely got a tenor for where he is going on this. And it's nowhere good for criminal defendants. I did also want to note during this oral argument that Justice Sotomayor was just extremely nice. You know, the lawyer for Mr. Cruz blanked up at the podium on a case when they were asked about a case name by another justice. And at her next turn asking questions, Justice Sotomayor pipes up with the pages of the brief on which that case is referenced so the lawyer can check it out

and come ready to talk during rebuttal. And it was just something that she did, you know, not in like a showy way, but like genuinely trying to be nice and helpful. That is not always true of justices when they are questioning advocates. So I wanted to note that. And then some exchanges to highlight from the justices about whom the song question was written because they also came ready for this argument. Here's Elena Kagan explaining why the Arizona argument in this case is perplexing.

Well, but it wasn't the rule in Simmons in Arizona. I mean, you know, maybe I'm just being simple-minded about this, but at point A, Simmons was not operative in Arizona, and in point B, Simmons was operative in California. Change in the law. Well, every precedent is a change to some extent, but they... Well, that's a big change. I mean, the right is not there to be invoked. Now the right is there to be invoked. And that happened as a result of Lynch. Now, it's true, it should have

happened earlier, but in Arizona, Simmons could not be invoked. The defendant would have been told, too bad. Now, the right can be invoked. That's as big a change of law that there is. And last question, which I'm going to pose as a question to our listeners, is this. Did Elena Kagan drop an Easter egg just for our listeners in this question? Bad faith or not, I think Kafka would have loved this. Cruz loses his Simmons claims on direct appeal because the Arizona courts say point blank, Simmons has never applied in Arizona. And then he loses the next time around because the Arizona courts say Simmons always applied in California.

I mean, tails you win, heads I lose, whatever that expression is. I mean, how can you run a railroad that way? I'd just like to note that we called Arizona's argument in this case, heads I win, tails you lose, on the last episode. Like, Justice Kagan, let me know when we can book you on the pod with Taylor, with Regé-Jean. Your choice. Isn't Alito going on a pod? Yeah, he went on the Heritage Foundation podcast. Speaking of double standards for different justices,

like imagine, right? Imagine how embarrassing that is. Right. Yes. Right. We should make ourselves listen to that podcast. How about we delegate you to listen to it and then you can report back to us. I'm enough of a masochist.

I already listened to that Heritage Foundation conversation about like supporting the crown because it was consistent with the American Revolution. I already listened to that crowd. And I made myself listen to Ted Cruz's podcast when he had this Kiss Cruz versus FEC argument last year. So, okay. So you're ready. You're ready to do it. This is now like in my head. Thanks for volunteering, Kate.

Way to go. This is my penance for not knowing the Daniel Webster quote. Right. So when we come back next week, we are going to highlight the big ICWA cases, the Indian Child Welfare Act cases. These are four cases, all sort of consolidated under the rubric of Holland versus Burkine. And, you know, FYI, we have Justice Alito, who has been gunning for the Indian Child Welfare Act for some time, dying to categorize native status as a racial category, completely upending federal Indian law. And then we have,

you know, wildcard Neil Gorsuch. Will his solicitude for tribal law continue. So we are going to leave those for the recaps next time. And we'll hear where all of the justices were on these incredibly important cases. And if you want to get a primer on what these cases are about, we really encourage you to listen to This Land, another crooked media podcast starring our friend of the pod, Rebecca Nagel. Now for the Promise Court Culture segment, which is this. The most nonpartisan, totally not ideological member of the Supreme Court, Samuel Alito, decided to speak to the totally nonpartisan, non-ideological organization, the Heritage Foundation, that is spending millions of dollars to elect Republicans in Congress.

And he chose to speak to them about how the court is definitely nonpartisan. And the real problem are the people who criticize the court for being partisan. I guess that's us. Yes. Say our names. Say our names. During his speech, Justice Alito had the following to say, quote, to say that the court is exhibiting a lack of integrity is something quite different that goes to character, end quote. And on suggesting that the court might have a legitimacy problem, Justice Alito had this to say, quote, I don't think anybody in a position of authority should make that claim lightly. I'm looking at you, Elena Kagan.

That is not ordinary criticism. That is something very different, end quote. It is pointed directly at you, criticism. I have to say, I mean, first, just as a corrective, like no one is saying these things lightly. And you're right that these criticisms are in fact very different now. And these criticisms reflect the fact that you as an institution are acting in different ways. And it is again, these criticisms are being made like lightly and just thrown around, but are being made by people who know the institution, who follow it, who study it, and they are concerned. And hearing this speech did really give me another lens or perspective on Taylor Swift's karma, the beginning of which goes as follows. You're talking shit for

the hell of it. Melissa, turn your camera back on. That's not in the lyrics, so I'm going to restart that. You're talking shit for the hell of it. Addicted to betrayal, but you're relevant. You're terrified to look down because if you dare, you'll see the glare of everyone you burn just to get there. It's coming back around for you, Sam Alito. My favorite Sam Alito line here was the following, quote, we follow precedent most of the time.

I love it. I love it. Nothing to see here, folks, said the man who wrote Dobbs. We follow precedent most of the time. During his speech, Justice Alito also made the point that the leak of the draft opinion in Dobbs made the justices in the majority targets for assassination and led people to think about killing one of us. So there he's obviously referencing the individual who was arrested outside of Brett Kavanaugh's home with weapons in his backpack and charged with attempted

murder. And this is a really scary moment. And the prospect of political violence is real and scary, like really scary. That was really scary. Obviously, the attempted kidnapping, home invasion, and brutal attack on the husband of Speaker Nancy Pelosi is horrifying. These are all extremely serious dynamics. But when it comes to the Dobbs leak, it actually does seem important to make the point that Alito wants to kind of invoke the effects of the leak and the criticism of the court for the opinion, as though kind of those are the only things that

really matter for us to talk about when we talk about Dobbs. And to us, it's also really important to talk about how the opinion has affected people's lives and how it has threatened and risked the lives of the millions of women and other people who can become pregnant in the United States. And it is just extremely on brand for Alito to once again make dobs and row about him and the other justices in the majority and to erase completely any acknowledgement of the women and pregnant people who are very materially harmed by the decision. Yeah. And this speech is just another example of this pathology, which is it's not enough for him, the conservative legal movement, to win, to write the decision over ruling Roe. He also seems to think he has a right and is entitled to have everyone compliment him and tell him how awesome he is, no matter how he is behaving, no matter how the court is behaving.

Like it's not enough for him to take away people's rights to bodily autonomy. It's that he expects everyone to thank him for doing so and to treat his position as reasonable and worthy of respect. It really called to my mind like this exchange he had with S.G. Prelogger in a case challenging the test and vax policy of the Occupational Safety and Health Administration last term. So maybe we can play that clip here. 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? They're not safe and effective. No, I'm not making that point. But is it not the case? No, 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. Whenever, you know, Sam Alito comes up, I keep coming back to Adam

Serwer, who, you know, came on the podcast and is a previous target of Justice Alito's brand of nastiness. So Justice Alito called out Adam Serwer, who is a columnist at The Atlantic. He called out Adam for describing how the court had nullified Roe when it allowed Texas's SBA to go into effect. And as Adam has said, like for Justice Alito, like he really thinks he is entitled to behave in these ways and that no one else can behave in the way that he does. And you also can't say or acknowledge how he is behaving. And he just seems to think it's wrong to like criticize government officials for their decisions. And it is just a really, again, like dark thing to behold. In related updates about

our apolitical and nonpartisan SCOTUS, The organization American Oversight has announced that they have obtained emails regarding a June 23rd, 2021 lunch that included Governor DeSantis, Justice Clarence Thomas, and four clerks. Previously, this is still a quote from the press release from American Oversight, we obtained an email from that same month in which Ginny Thomas said her husband had recently been in touch with DeSantis, you know, people can have lunch. Like, you know, just like let me make clear we're not anti-lunch on this podcast. But the kind of continued erosion of the Thomas's public position, which is that there's a firewall between their professional lives,

I think is worth continuing to flag because there's lots of evidence that their professional lives are quite intertwined. So just to wrap up here, we wanted to give a shout out to Kate and my editor on the Wisconsin Law Review, who's also a strict scrutiny listener and is working hard on a piece that we have written on the independent state legislature thing, and that is Patrick Zicula. We also wanted to shout out our favorite eye physician slash fanboy. That is Dr. Barry Farkas from New York City. We ran into your son when we were out and about this weekend. And he was gushing about how much you, Dr. Barry Farkas, loves the pod.

So we love this. We're definitely going to need readers at some point like Justice Barrett. So Barry Farkas, keep us in mind. We're going to be coming to you. Before we go, a heads up that the Crooked Store just launched a bunch of new merch inspired by your favorite Crooked Media podcast, reminding you to unplug, reconnect, and get festive. New items include a log-off ornament, a Nog Save America mug, and so much more, including strict scrutiny merch. Have our t-shirts been restocked yet?

I don't even know. By the holidays? Yeah, that's the goal. Okay, cool. So this holiday season, every order from the Crooked store will support Vote Save America's Every Last Vote Fund to make sure every voice can be heard in the face of unprecedented voter suppression. So get some gift shopping done at the Crooked store.

And while you're there, grab a thing or two for yourself. Head to crooked.com forward slash store to check out the new arrivals now. edited by Melody Rowell with audio engineering by Kyle Seglin and music by Eddie Cooper. Production support by Michael Martinez, Sandy Gerard, and Ari Schwartz with digital support from Amelia Montu. Thanks for listening.