Strict Scrutiny - Anti-Abortion Litigation at Warp Speed

Episode Date: May 22, 2023

Melissa, Kate, and Leah recap the Supreme Court's recent opinions about the Internet and intellectual property. As we predicted, the Internet isn't going to end with a bang-- and not even a whimper. Plus, we give you the "highlights" of the oral arguments in the Texas mifepristone case... which are even wilder (and more terrifying) than we could have imagined.Sign up to see the Strict Scrutiny live show in Washington, DC on June 9th!The hosts covered the arguments of the opinions for Gonzales v. Google LLC and Twitter, Inc. v. Taamneh in this episode.In this episode, the hosts discussed the arguments for Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, another one of the opinions discussed.This past episode discusses the arguments for Ohio Adjutant General’s Department v. Federal Labor Relations Authority, an opinion the hosts talk about this 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 legs. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Littman. And we are going to start with breaking news,

then move on to some opinion recaps and end with some important Supreme Court and court adjacent news, including some big cert grants and a truly bonkers Fifth Circuit argument over Mifepristone. Because the Fifth Circuit, they just never disappoint. And it just never ends. So first up is the breaking news, which is Senator Dianne Feinstein, who has been absent from Senate proceedings for three months, is physically back in D.C. in the Senate, which means, finally, the wheels of the confirmation machine are turning

once again. So last week, we saw the confirmation, among others, of Nancy Abudu to the 11th Circuit. She was confirmed by a vote of 49 to 47, and she will be the first Black woman ever to sit on that appeals court, which includes, among other states, Alabama, Georgia, and Florida. On the topic of Senator Dianne Feinstein, additional reporting last week basically brought to light that her illness and her current condition both were and are a lot more serious even than previously reported, including the fact that while battling shingles, Senator Feinstein suffered a number of complications, including contracting encephalitis. And her condition – That sounds bad.

It sounds really bad. But was this like surprising to anyone that the situation was more dire than shingles? Well, encephalitis is – I did not know that. Obviously, shingles-related complications occur. But this is like very, very serious. Brain swelling can lead to all kinds of lingering and sometimes permanent effects, especially in elderly individuals. So yeah, we knew it was serious. We knew it maybe was even super serious. It's even more serious, I think, than we had realized. And so she's back, but her condition, both physically and cognitively, appears very, very compromised. And she evidently

remains determined to continue to serve. There was reporting in the New York Times suggesting that she was dodging calls from people like California Governor Newsom while she was convalescing in California. Tell him I'm not here. I'm somewhere else. A staff member took his call and just she never got back to him. Members of the Senate, she was just kind of dodged. So she doesn't want to hear the message that she needs to consider stepping down. And yet I think those calls are becoming increasingly urgent and coming from increasingly sort of broad array of individuals. At the moment, at least, doesn't seem like that's in the offing. But I do think that her ability to continue to perform the function of a sitting senator, I thinkstein is on the mend. But again, Kate is right. This is a very concerning situation. Also concerning are some of the opinions we got this week. So let's talk about them. Good segue. Yes. So last week was a big week for tech and IP cases out of the court. So we're going to walk through all of them here, some at more length than others. And again,

we've covered many of these cases extensively in earlier episodes. So first up is Warhol versus Goldsmith, in which the court sided with the artist Lynn Goldsmith against the Andy Warhol Foundation. So we're going to walk through this case and its reasoning. But first, let's talk a little bit about the lineup, which was truly fascinating, real strange bedfellows energy. Justice Sotomayor authored the majority opinion and was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett, and Jackson. Justice Gorsuch filed a separate concurring opinion, which Justice Jackson joined. And this is really the shocking part, Justice Kagan dissented and was joined by the Chief Justice in her dissent. And oh, did she.

We'll get there. Quite a dissent, in which she was joined by Chief Justice Roberts. And it seems like there might be some kind of sort of weird alliances forming between the last two pairs, which is to say Justices Gorsuchotomayor and Kagan was especially sharp, prompting some in the media to talk about catfighting and gorgeous ladies of wrestling and all kinds of stuff that really is beneath the dignity of these two great women. So this is not something we've seen between them before. So it is worth remarking on. And trust me, we will remark upon it. There were some kind of early seeds of, you know, a heated exchange between the two of them in Lockhart versus the United States, a case about the proper interpretation of a federal criminal

law about statutory minimum sentences. So in that case, Justice Sotomayor had written the majority opinion. Justice Kagan wrote a dissent. And the dissent described the majority's made-up sentence as proving the dissent's point and encouraged readers to quote, pick up a journal or a book, or for that matter, a Supreme Court opinion to see why the dissent was right. So it had kind of like louder echoes of that in this case. So laid some groundwork earlier, really built the building this time, for sure. All right, so let's get into this opinion. So Kate, you want to tell us the facts and remind us of what was going on here? Sure. And as you said, Melissa, we did preview this case, but let's just remind listeners what the case involves. So it's about a photographer,

Lynn Goldsmith. And I have to say, I really appreciated that Sotomayor began the opinion talking about Goldsmith, like just kind of reminding us that this case was about people and their art, and not just about copyright doctrine. So Lynn Goldsmith wasn't like Andy Warhol famous, but she was a trailblazing music photographer when there really weren't a lot of women in the business. And she photographed artists like Bob Dillon and Patti Smith and, as relevant here, Prince. So she had done a portrait of Prince, and in 1984, Vanity Fair sought to license that photo as an artist reference. To help illustrate a story about Prince, she agreed, including the condition that this be a one-time use, and they paid her $400. Vanity Fair didn't just run the photograph, but commissioned Andy Warhol, who created a silk

screen based on the photograph. Vanity Fair ran the Warhol work in the magazine to accompany the article, and the piece was attributed to both Goldsmith and Warhol. But Warhol didn't stop there. He created 15 additional works commemorating Prince based on the photograph. And sometime later, the Andy Warhol Foundation licensed one of the works to Conde Nast for $10,000 with no attribution or payment to Goldsmith. And when Goldsmith reached out to the foundation to suggest they were infringing her copyright. They sued her. So what does the law provide for here? The Copyright Act protects original works, but it allows for fair use of copyrighted works. And the court here framed the question as involving the first factor of any fair use analysis, which is an inquiry into, quote, the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, end quote. In copyright speak, that means a work

that has a different purpose and character is said to be transformative and different from the original work. So focusing on that narrow question of the first fair use factor, the court sided with Goldsmith, explaining that the purpose and character of the two uses was basically the same, to accompany or illustrate magazine articles about prints, and that the allegedly infringing work, that is the Warhol-Conde Nast piece, was commercial. And so that was not a fair use. The court, in its majority opinion, kind of walked through the purposes of the copyright laws, balancing these important competing interests. On the one hand, incentivizing creativity, and also allowing the availability of works for future artists and their secondary creations so that you both incentivize artists to produce in the first

instance, but also allow later artists to make use of existing materials without tamping down later creativity. And the Sotomayor majority opinion suggests that the fair use test seeks to balance these competing interests and that on its proper application, kind of mindful of all of this, the use here was infringing. The majority kind of hastens to say that it is not suggesting that anytime a derivative product borrows heavily from something else, that can never be fair use. And actually, the opinion suggests that certain other works by Warhol himself, like the famous Campbell's Soup Can series, depict Campbell's soup cans, but to comment on consumerism, not to sell soup, right? It's a different purpose and

kind of a different message. All those things suggest that that kind of derivative work might genuinely be fair use, but this kind of derivative work is not. So she's not suggesting a blanket rule that condemns all derivative use of this sort. So the majority spends a lot of time criticizing the dissent. A few examples of this. It accuses the dissent of, quote, a series of misstatements and exaggerations from the dissent's very first sentence. It goes on to say that, quote, fortunately, the dissent's magazine editor test does not have much of a future in fair use doctrine. Womp womp. And then it continues, quote, while keenly grasping the relationship between the two Lolitas, the dissent fumbles the relationship between the first and fourth fair use factors. It says the dissent misconstrues the role of commercialism in the analysis.

It claims that the dissent is stumped and, you know, says buried in a conclusory footnote, it suggests that the fourth fair use factor alone takes care of derivative works like book to film adaptations. This idea appears to come from a Hail Mary lobbed by AWF when it got caught in the same bind. We could go on. So not to be outdone, Justice Kagan dissented and she was joined by Chief Justice Roberts. And a lot of the dissent is sort of aimed at dismantling the majority's logic here. And Justice Kagan writes that the Warhol use here was clearly transformative and as such was clearly fair use and the majority opinion badly misses the mark in failing to appreciate this. The dissent

then suggests that because the majority really just focuses on the commercial nature of the allegedly infringing use, it fails to properly analyze and therefore to appreciate the genuinely transformational use that Warhol made of the photograph. And the majority's reasoning, Justice Kagan suggests, will stifle future art and creative expression. Justice Kagan describes Warhol as the, quote, avatar of transformative copying and offers, as an example, Warhol's iconic portrait of Marilyn Monroe, which she contrasts with the original from which it was derived,

a standard publicity photo. As to the Prince piece, Justice Kagan describes the painstaking process of cropping and silk screening that resulted in the Warhol image, which the opinion reproduces. In the dissent's view, the product is totally different in its composition and presentation and color palette and media from the original, and it is distinct in the message it conveys, converting prints in the district court's description from a vulnerable and uncomfortable person to a larger-than-life celebrity and icon. And so in the dissent's view, this is transformational,

and thus it is protected as fair use. Okay, so that's the kind of substantive gist of the dissent's case. On tone and crosstalk, the dissent, much like the majority, is unusually sharp in the way it talks about and responds to the majority opinion. So let's just give a couple of examples. The Justice Kagan dissent says, quote, it is not just that the majority does not realize how much Warhol added. It is that the majority does not care. In adopting that posture of indifference, the work adds something new with a further purpose or different character, altering the original with new expression, meaning, or message. When it did so, we called the work transformative and held that the fair use test first factor

favored the copier. But today's decision, all of the majority's protestations notwithstanding, leaves our first factor inquiry in shambles. And then there is a footnote early on in the dissent. And Kagan writes this, and I think it maybe is worth reading in its entirety, even though it's kind of a long footnote. So she says, one preliminary note before beginning in earnest. As readers are by now aware, the majority opinion is trained on this dissent in a way majority opinions seldom are. She's right. There's a lot of reference to the dissent in the majority opinion. Not all majority opinions do that. Some of them just ignore dissents. This one does not ignore the dissent in the majority opinion. Not all majority opinions do that. Some of them just ignore dissents.

This one does not ignore the dissent. Okay, back to Kagan. Maybe that makes the majority opinion self-refuting? After all, a dissent with no theory and no reason is not one usually thought to merit pages of commentary and fistfuls of comeback footnotes. In any event, I'll not attempt to rebut point for point the majority's varied accusations. Instead, I'll mainly rest on my original submission. I'll just make two suggestions about reading what follows. First, when you see that my description of a precedent differs from the majority's, go take a look at the decision. Second, when you come across an

argument you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to Ipsodixit. With those two recommendations, I'll take my chances on reader's good judgment. So to editorialize, I mean, we have noted the obvious bad blood on the conservative wing of the court before. There, Leah correctly mentioned Lockhart as another example of some kind of sharp crosstalk between Kagan and Sotomayor. But I don't think we've really seen anything quite like this before. And I think, Melissa, you were right that the gleeful calls of catfight were really offensive and problematic. And I obviously don't want to go down that path. But I think this is striking and worth spending a minute on. So what did you guys make of it?

I have like a few thoughts. One is, you know, some people tried to suggest that this somehow made the tonal criticism that Justice Kagan and others have sometimes lobbied at the conservative wing of the court less significant because it shows everyone just writes in this way now, even among justices who often vote together in big ticket ideologically salient cases. And I wonder if instead it's a reflection of the bleed over from the intense disagreement and disappointment with what the Republican justices are doing. You know, I kind of think about it as if I'm walking around pissed off because there's some really big thing happening that's really agitated me, I am more likely to also spit fire and respond in that way to other smaller disagreements. So that's one thing.

The other was, you know, this was the case where in the oral argument, Justice Kagan reacted incredulously to something Lisa Blatt had said in response to one of Justice Kagan's questions. Specifically, Lisa had suggested that Justice Kagan's question was insulting to three members of Article 3. And in this case, Justice Sotomayor ruled for Lisa Blatt's client. And I wonder if that too kind of contributed to the dissent that we got. I think one thing to note here is that before she became a judge, Justice Sotomayor was famously a prosecutor at the Manhattan DA's office, but she was also an IP lawyer at a boutique litigation firm called Pavia and Harcourt, which has a very robust fashion and luxury goods practice. And as part of that practice, she did a lot of copyright

infringement litigation where she went down to Chinatown here in New York City to identify vendors who were infringing on the copyrights of some of their luxury brand clients. She's talked about this extensively in her autobiography. And it's not surprising to me that she would take a position that would support someone like Lynn Goldsmith. That's kind of a very similar kind of perspective and posture. And again, I think the tone, in her majority opinion, is very sharp. And maybe that's because this is a field in which she knows what's going on pretty well. And she is perhaps annoyed at having her expertise in the field questioned and

challenged so publicly. I mean, you know, I've been in places where, for example, you know, someone has said something about family law, and I've just been like, no, that's actually not right. And the person will challenge me. I'm just like, who the fuck are you? Like, don't you do like land use? Shut up. But I mean, like, it felt like that kind of energy, like just like the constant questioning of your expertise, I think would be wearing and maybe that's part of what's going on here. And, you know, I have to say I was disappointed in the Kagan dissent. I mean, she's so smart. She's so sharp. And this could have been a very sharp and smart dissent without descending into snark. And, you know, part of what disappointed me is I think she probably knows that an exchange like this is going to prompt calls of catfighting.

And that was easily predicted. I think she also probably knows that an exchange like this will engender some pretty, frankly, racist commentary. Like the Twitterverse was all agog about the brilliance of Justice Kagan smacking down stupid Justice Sotomayor. There were all of these tweets like this, and that was predictable. We've talked at length on this podcast about how people talk about the justices of color and their intellect and their qualifications. So I'm not going to say anything more about it. But I think it was pretty predictable what this exchange would lead to in public commentary. And it just felt like providing

some sucker to the lowest common denominator. Yeah, yeah, no, I think those are all really smart and well taken. I will also say one more thing. I think that Sotomayor's position was very Ginsburgian in its way. I think in her IP cases, Justice Ginsburg was very protective of authorial rights and artists. And I think if she were on the court, she likely would have joined this majority opinion. She might even have written this majority opinion. She might even have written this majority opinion. And I wonder if the kind of sharp tone of a dissent would have been leveled at Justice Ginsburg. Yeah, that's a great question. And I think the answer is maybe not. I mentioned the kind of

framing the beginning by focusing on Goldsmith. And I think she says somewhere late in the opinion, in response to Kagan's suggestion that this is going to stifle creativity, etc., no one was suggesting that Warhol could not have tried to make this use. All we're talking about is licensing. Give us some cut to the original artist. And so in some ways, like that is some of the kind of broad characterizations in the dissent of the majority opinion, just kind of miss what the bottom line for the majority is, which is just don't cut out artists from profiting from their work, particularly when you have this kind of power imbalance, the Warhol Foundation on the one hand, and, you know, a music photographer, a significant one, but no Andy Warhol on the other.

It also struck me, and this is like a much more prosaic observation, but like maybe Kagan is just like obsessed, like a huge Warhol fan. Like she really, really loves Andy Warhol. This is like the Prince fans versus the Warhol fans, like shirts versus blouses. But the upshot of the case is it seems to make the focus on fair use, on the specific use made by the defendant, not so much the inherent nature of the work. And they also focus on whether the specific use competes with the original work, which is very similar to what the fourth fair use factor had been, which now seems to be creeping into the first fair use

factor as well. And, you know, this will involve judges as any kind of test, I think, that had been bandied about here would in assessing the works themselves and asking, like, would an art buyer consider these two things similar if they're looking to get one thing are these two kind of in competition with one another but I don't think this opinion ended up being necessarily as significant in either direction as some people thought it might be or were concerned it might be the whole significance of this opinion is this fight between the two of them. I'm not a copyright person, and so I hesitate to venture a guess. I was just saying that was

kind of like my read is it seemed like the position adopted by the majority was a little bit more like context and case specific than some of the alternative positions that had been suggested. Speaking of cases not ending up being as big as they could have been, let's do the two future of the internet cases, Twitter versus Tomna and Google versus Gonzalez. So these cases were billed as potentially enormous cases about the future of the internet and the meaning of Section 230, the provision of the Communications Decency Act that confers immunity on online services and in many ways created the internet of today. But these cases were definitely not that.

Instead, the court decided Tomna very narrowly and sent Google v. Gonzalez back to the Ninth Circuit to be reconsidered in light of the Supreme Court's disposition in Tamna. We said this after the oral arguments in these cases. It's pretty clear that the Internet is not going to end with a bang, maybe not even with a whimper. And not to pat ourselves on the back too much, but I think we were basically right. It happens a lot. It happens occasionally.

I think it happened this time. And I thought that Steve Mazie had a nice take on Twitter, which was basically after all those pages of briefing and all the complicated questions about algorithms, it seems that Kagan's line from the oral argument, which was really the kind of line of the day, which was, we're not exactly the world's greatest experts on the internet, may have won the day, right? Maybe the court just had an atypical burst of humility and decided to try not to screw up the internet may have won the day, right? Maybe the court just had an atypical burst of humility and decided to try not to screw up the internet too badly, at least today. All right, so Melissa, Instead, they'll just screw up the Voting Rights Act and Affirmative Action and the Clean Water Act and everything else. What are you stuck to break? We don't have to break the internet until

next year. Exactly. Not this term anyway. So Melissa, do you want to walk through what the court did do in these sort of small-ish cases? So in Twitter versus Tamna, the court, in a unanimous opinion written by Justice Thomas, ruled against the owner of YouTube, arguing that these platforms had aided and abetted ISIS in these acts of terrorism, including this particular attack. And the aiding and abetting was essentially that Twitter, Google, Facebook, and YouTube all knowingly allowed ISIS to use their platforms. And their algorithm recommended some of this content to users who would be receptive to it, allowing ISIS to recruit, fundraise, and further radicalize individuals. And in the process, the plaintiffs

claim, the platforms profited from all of this through the advertisements that were placed on ISIS's tweets, posts, and videos. So the suit was brought under a provision of the Anti-Terrorism Act of 1990, which allows suits by individuals who are injured in their person, property, or business by reason of an act of international terrorism. And it was amended in 2016 to encompass individuals or entities who aid or abet by knowingly providing substantial assistance to international acts of terrorism. And the court's opinion in this case focused very narrowly on whether the alleged conduct here constituted aiding or abetting under the statute. So the court basically distills a case called Halberstam and relies heavily on early common

law approaches to aiding and abetting liability, and basically concludes that this phrase, right, the statutory phrase aides and abets, refers to a conscious, voluntary, and culpable participation in another's wrongdoing. And using that test, the court basically concludes that the allegations here did not plausibly allege that these defendants, Twitter and Facebook and Google, had knowingly and culpably participated in the attack on this Istanbul nightclub. The court explained that given the lack of any concrete nexus between the defendant's services and this attack, the plaintiff's claims would necessarily hold defendants liable as having aided and abetted each and every ISIS terrorist attack committed anywhere in the world. And that's

something the court was just not willing to sign on to. The court says maybe at most these platforms could have done more to actively monitor for and take down ISIS content, but that that kind of inaction is just not the sort of thing that the common law has traditionally recognized as constituting aiding and abetting. So all of this means that the court did not wade into questions about what it means for YouTube to play versus promote versus recommend a video, the legal significance of a thumbnail, or any of the other questions around which the justices had demonstrated, let's say, some slight confusion during the oral argument. After this ruling in the Tomna case, the court addressed Google v. Gonzalez, a case involving similar facts growing out of terrorist attacks in Paris

and in which the briefing and the lower courts had addressed the question of the scope of Section 230. But rather than discuss Section 230 on the merits, the court vacated and remanded, essentially directing the Ninth Circuit to take another look at the case in light of the Supreme Court's ruling in Twitter v. Tomna, suggesting that most or all of the claims in the case failed under the court's holding in Tomna or other unchallenged aspects of the Ninth Circuit's ruling. So bottom line is the nine greatest experts on the internet get a little more time to brush up before another Section 230 case. I kind of took Justice Jackson's concurrence in the case to suggest they're still watching, though. So, you know, we'll see.

Like ProPublica, they're still on the case. Exactly. We are actively considering. Speaking of which, you think Justin Elliott had the week off last week? It was sort of striking that ProPublica dropped no new breaking news this last week. Still working. Still working. They're like the pinwheel on your Mac. Loading, but it's going to drop at some point. So can I ask a question? Did you think that the whole discussion of activity and sort of what constituted like passive versus active participation, like did that remind you of NFIB versus Sibelius, the Obamacare case from 2013, where there's that whole discussion of whether requiring people to purchase health insurance was activity or it was inactivity?

And it's all this kind of weird framing question. And you could frame it in very different ways. And it could be activity if you framed it one way and inactivity in another. I thought this was the same kind of thing here. Yeah, potentially. I'm sorry, I can't let a mention of NFIB versus Sebelius go. That's just extremely triggering to me. So you've basically already risen my agitation levels before we even get to the Fifth Circuit's ruling. So I just want to add that. That's just me gassing you up, Leah. I did that purposely to gas you up. Thanks, friend. All right, let's briefly mention the other opinions that were

handed down this week. They also didn't break the internet, but we should mention them. So first up is Amgen versus Sanofi. So in this opinion, Justice Gorsuch, writing for a unanimous court, rejected Amgen's arguments that Sanofi had infringed its antibody patents. And I have to say, I wanted to call attention to this because the opinion's really something with Justice Gorsuch showing off his command over both the structure and function of antibodies, something I did not realize he was so expert in. He contains multitudes, Melissa. He's so talented. I can only surmise that Justice Gorsuch was concerned that Judge Kaczmarek was getting all of the credit as being the leading scientist on the federal bench. And he decided to step in here to show that he, too, does science. And this opinion contains such gems as, quote, there may be as many unique antibodies as there are stars in the galaxy,

end quote. And I have to say, fantastico, Neil. I loved it. It's amazing. He wrote that line just to draw out a fantastico, Melissa. Fantastico. I'm glad we did all of it. So let's tick through a couple more opinions and then basically unleash Leah on the Mepepristone argument, I think. Okay, so we'll be quick. Keeping her in the cage. We're going to unleash the Kraken.

Okay, so the next case. I'm hungover. I'm agitated. Like, this is going to be a doozy. It's going to be good. Okay, we need to get right to it. Okay, but briefly first, the Ohio Adjutant General versus the FLRA. Melissa, did I say that word right?

No. No. You say the name of the case. Adjutant General versus the FLRA. Melissa, did I say that word right? No. No. You say the name of the case. Adjutant. Okay. The Ohio Labor case versus the FLRA. This is a case we previewed. And the opinion actually both issued an interesting lineup and actually seemed to reach a sensible

result. So Thomas wrote the majority opinion. He was joined by Roberts, Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson with a dissent from Alito and Gorsuch. And the case, as a reminder, involved whether the Federal Labor Relations Authority had jurisdiction over a dispute between the Ohio National Guard and then the American Federation of Government Employees, which, you know, an AFL-CIO local, and the federal agency, the Labor Relations Authority, would only have jurisdiction if the Ohio National Guard is a federal agency. So in a surprisingly sensible opinion, Justice Thomas concluded that the Ohio National Guard is a federal agency when it hires and supervises dual status technicians in their civilian role. Accordingly, there is jurisdiction by the agency over this matter. Again, this majority opinion seemed to be sane, basically preserving the way things have worked for decades with the dissent, making it more difficult to

enforce labor agreements, which is pretty classic Das Capitalito slash Proletaria. Proletariat Alito? Proletariat Alito. Proletariat Alito.. Proletarialito. There, I got it. Okay. Do you think this is sensible because Justice Thomas is just like expending all of his goblin energy on the affirmative action case? Yes. Although usually he's capable of being kind of insane on a lot of fronts at the same time. So I don't know if we should be worried. That's why I think literally he's going to burn affirmative action to the ground.

Yeah. I think that's probably right. Oh, boy. Yeah, I think that's probably right. turn away asylum seekers on the basis of the COVID public health emergency. The case had involved dueling injunctions, which we aren't going to go into detail here. But really, what was pending in this particular case was a motion to intervene by some Republican-led states to defend the Title 42 program. And the Supreme Court vacated the order at issue, basically undoing it and directed the D.C. Circuit to dismiss the case as moot. That is, it's all done because the Biden administration has now ended the Title 42 policy and formally ended the COVID emergency. Our boy Neil Gorsuch had an eight page fantastico rant showing that he is still apoplectic about COVID restrictions, most of which the court struck down ages ago.

We're talking workplace vaccination and testing requirements, the eviction moratorium, early pandemic restrictions on gathering in large groups. He really is, you know, he's making a case that he too is a sore winner along the lines of Sam Alito. Why is he still so mad about all these restrictions, which they struck down? Like, he wrote lots of opinions in these cases, and yet, like, they're still in his craw as though this is something that is still being shoved down the people's throats. It's nuts.

Speaking of things being shoved down the people's throats, Justice Gorsuch wanted to flag a couple of things for us. So in the separate writing, he notes, quote, since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime because Korematsu arguably could have been more problematic. Executive officials across the country issued emergency decrees on a breathtaking scale, end quote. This reads like someone who was educated in a DeS era public high school in florida oh my god get a future of american children oh my god get a history lesson like if slavery is written out of our history sure it seems like a pretty serious civil civil liberties and native native dispossession yeah coverture jim crow segregation no no no none of that's if none

of that's in the history books, this is it. This is the worst. I mean, he obviously reads the same history books as Sam Alito, by which I mean he reads no books at all. And, yeah, fantastic. Fantastic. Well, there's more. There's more fantastico here. All right.

So here's another gem. Quote, make no mistake, decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edicts risk leaving all of us with a shell of a democracy and civil liberties just as hollow. I'm worried if he uses all of his best material here, what's he going to do with the loan cases? Because this is, I mean, you know, this is exactly the stuff he's going to write. I would public if you can keep it. That's going to be extra fantastico, Kate.

Oh, my God. Yeah. He's workshopping some of the material here, but it's really going to go. He's chipping away at the marble to leave only David. See what I did there? I did my own fantastico. Fantastico, Leah. That was great.

Thank you. Thank you. Another thing to keep in perspective about this case is that the Supreme Court kept Title 42 in place. That is, they kept the expulsion policy in place via an order on the shadow docket, even though the court ultimately didn't hear this case and it became moot. And when the only issue in the case was a threshold procedural question about whether certain Republican led states could intervene to defend the program, which makes the utter hypocrisy of the court's treatment of SBH, you know, all the more galling that, again, you know, they're ordering the administration to keep this policy in place. That legality of the policy isn't even before then. The court never even decides a threshold

procedural issue. It's just blech. Anyways, so in light of the opinions released, we can do some forecasting about what is yet to come. And listeners, there are some tornadoes and hurricanes on the horizon. So how do we know this? It is a tradition that each justice gets roughly one opinion per sitting. And it's pretty unusual for a justice to get two opinions in a sitting if another justice has not received any. So where does that leave us? From the October argument sitting, there are two outstanding cases with no opinions, Milligan, the Voting Rights Act case, and Sackett, the Clean Water Act case. Which justices have not written yet? The Chief Justice, Justice Thomas, and Justice Alito. Oh my god. God help us. I think it's going to be the Chief or Justice Alito with the Voting Rights

Act. Hard to say who. The Chief Justice, obviously this would be the culmination of his entire career trying to nullify the protections of Section 2 of the Voting Rights Act. Justice Alito, however, has basically been given a bunch of Voting Rights Act assignments Justice Alito, however, has basically been given a bunch of Voting Rights Act assignments in which he has watered down the protections of the Voting Rights Act, Abbott versus Perez, Brnovich. So I'm going to guess Roberts keeps this for himself. I think Roberts both wants it and is annoyed enough with Alito, not even though Alito would love it, and I'm sure will ask for it. I think Roberts keeps it. That's my prediction. But I'm confused, Leah. I thought the chief justice in Shelby County versus Holder explained that even though he was dismantling the preclearance regime, Section 2 continued to be a means for individuals to challenge discriminatory voting laws.

It is. Was he wrong? Did he lie to us? It's a means to challenge them. It's just they're always going to lose. So that's, yeah. He didn't say anything about successful challenges. He said it was available.

Why didn't I read more closely? Voting Rights Act, we hardly knew ye. So that's all the prognosticating we'll do for now since we're running a little bit short on time. It's really scary stuff. It all looks bleak. Both the November and the December sittings. We will just mention a couple of big grants that have come down in the last few weeks. One, a big sort grant that will give the court the opportunity to opine directly on the future

of Chevron. A few weeks ago, I kind of predicted that the court was just going to ghost Chevron, right? The 1984 case that directs courts to defer to reasonable agency interpretations of statutes, which the court has ignored, like really conspicuously, but hasn't directly addressed in recent years. And I suggested that I thought this kind of ghosting that I thought the court was engaging, it was pretty maddening, and I did. But then the court granted cert in a case specifically asking the court to reconsider Chevron. And then I was a little bit wishing they would go back to just ghosting because I don't know exactly how they're going to dispense with Chevron. But I think anything they're going to do here is going to accrue more power to the Supreme Court and make it more

difficult for agencies to function and further disempower the administrative state. And so sort of all of those things I think maybe will be accelerated. So I don't know, maybe disingenuous slow walking was better, I guess, a little early to tell. But they are going, it seems, to consider the future of the Chevron Doctrine. The case in which they are going to do whatever they're going to do to the Chevron Doctrine is called Loper Bright Enterprises versus Raimondo. And it involves, naturally, fishery management in federal waters. So, hmm. Just in thinking about the significance of this case, Kate, I mean, we've talked about how the Supreme Court just ignores Chevron, which doesn't exist anymore at the court.

I think this is really about policing the doctrine's use in the lower courts. And also, I'm not sure whether the court is definitely going to overrule it. But at a minimum, it's clear they're going to meaningfully narrow it. Again, I think basically emboldening judges to second guess more administrative decisions by Democratic administrations in particular. You know, I tend to be someone who thinks that Chevron does still matter, you know, even in cases with some Trump appointed judges, just in like non ideologically salient cases involving like pretty mundane regulations. And it feels like this grant is a way of shifting the paradigm there or emboldening all Republican appointed judges to just really go wild on any

Democratic administration's regulations. And I also worry about this making agency lawyers or regulators unnecessarily cautious as well. So I also wonder, you know, I mentioned the narrowing rather than overruling, whether they're going to adopt something like the Chief Justice's dissent from a prior case, City of Arlington, which had suggested that agencies don't get deference over things that relate to their jurisdiction. Again, that would be a potentially monster truck size hole in Chevron. So we'll just kind of see. We should also note that in this case, Justice Jackson is recused. And I think granting this issue in a case where Justice Jackson is recused is really some horseshit because let's say some of the justices don't actually want to overrule Chevron or there would have been a majority of five to keep it. Well, in this case, that would just mean a 4-4 tie. So it wouldn't result in a precedential opinion keeping Chevron. It's ridiculous. To underline the point that Leah just made, I mean, like, in a world in which they are

perhaps hobbling the Voting Rights Act, making the electoral landscape more difficult to negotiate, when progressives actually do win, this is a way to mute those policy gains by taking it to the court that then doesn't have to actually allow those gains to be actualized. Yep. So one other case in which the court noted probable jurisdiction, I'll explain that in a little bit. The court noted probable jurisdiction in Republican legislature's maps. But one option the court had was just to simply summarily affirm the unanimous three-judge district court ruling, which pretty clearly applied well-established law to the facts. But this court doesn't like well-established law and appears to want to change it because the Republicans brief in this case filed by Jones Day, including John Gore, who was the acting assistant attorney general for the

civil rights division during the Trump administration. Yeah, that's civil rights in air quotes. They offer a bunch of arguments for why there wasn't an intentional racial gerrymander here. And all of these arguments would make it so much harder for plaintiffs to prove racial gerrymandering in future cases and harder to ensure politicians would actually be accountable to minority voters. So we'll be covering this case more next term when the court hears it. And now, finally, the Mifepristone. It's time to unleash Leah. That's right. Prepare.

Okay, we'll set the stage a little bit first. Last Wednesday, a Fifth Circuit panel demonstrated that as bad as things seem right now at the Supreme Court, they could actually be worse. The full Supreme Court could, I don't know, maybe sometime soon will like sound like this. The fact that this made me feel like grateful that the Supreme Court still has like a shred of sanity is probably just like a perfect demonstration of the Overton window at work. But it was like these judges are truly nuts on the Fifth Circuit. And so we're going to give our listeners a little bit of an insight into just how. We should say at the outset, given some of what happened, some federal judges need to put on earmuffs during this segment because the things we are going to say are going

to be going to hurt your feelings. They're going to hurt your feelings because we're going to accurately characterize things you said and did during this oral argument. So earmuffs, please. All right. So those caveats duly issued. Let me proceed. This is the case involving the challenge by a group of doctors who clearly do not have standing to challenge the 23-year-old decision by the FDA to approve mifepristone as safe and effective for ending early pregnancies. There was a decision by Judge Matthew Kazmarek siding with these plaintiffs, and there was a panel opinion by the Fifth Circuit second-guessing the FDA's judgment,

not as to the 2000 approval, but as to some of the 2016 changes that made Mifepristone easier to access. Both of these opinions are on hold right now, pending potential review of all of these matters. But in the meantime, there was an argument last week on these challenges in front of a panel that included Trump appointees James Ho and Corey Wilson and George W. Bush appointee Jennifer Elrod.

And let's just say the panel was atrocious in every conceivable way. Is that fair? Oh, yeah. So it was a bad draw of a panel. You know, we've talked about Judge Ho on this podcast before. He was the judge that actually wrote the opinion in the Dobbs case, encouraging the Supreme Court to take up whether to overrule Roe versus Wade. He also has some Crow adjacent activity. on the PJ to participate in said investiture. He's also, you know, a real cancel culture warrior and engaged in boycotts of hiring law clerks from various schools when students at those schools criticize federal judges. So we have the audio of the arguments and we will be playing a few clips

so you can hear the madness for yourselves. We mentioned the judges. The lawyers were Sarah Harrington for the federal government and Jessica Ellsworth for Danko, the pharmaceutical company that manufactures Mifeprex, the brand name Mifepristone. And they were both fantastic. And then for the doctors was Erin Hawley, who also argued the case in the district court. And she was also fantastic in making clear just how bonkers these arguments are. Fantastico! Right. They were fantastic and she was fantastico. I think that's right.

Yeah. So the audio is available on Audio Arguendo if you want to listen to this thing for yourselves. But basically, it started out, there was like a minute where things seemed sane because the minute was just Sarah Harrington talking. And then Judge Ho decided to interject, to characterize the government's position. I guess I'm just wondering why not just focus on the facts of this case rather than have this sort of FDA can do no wrong theme. Things only, let's say, ramped up from there because then later on, Judge Ho decided to take a page from Justice Alito and wanted to get the federal government on record about whether they would comply with a judicial decision, revoking the approval of Mifepristone or slapping on a bunch of additional restrictions to it. Justice Alito, in his recent dissent or whatever you call it in this case, the emergency stay, sort of alludes to some public chatter about FDA perhaps might not follow court orders. So I just wanted to give the same opportunity to clarify that I think

Chief Justice Roberts gave to the state of Texas in the SBA case, SB8 case. Is the FDA intending to follow whatever this court decides, obviously subject to Supreme Court review? I mean, absolutely, right? So whatever this court decides may be continued to be stayed pending Supreme Court. Of course, subject to Supreme Court, right? But the FDA will oblige. Yes. And secretly from the Supreme Court, we submitted an affidavit from Dr. Woodcock explaining all the things that the FDA would need to do to comply with the stay panel's decision Elito Oblide. Yes. And secretly from the Supreme Court, we submitted an affidavit from Dr. Woodcock explaining all the things that the FDA would need to do to comply with the stay panel's decision in this case. I think that's good evidence that we're planning to comply with any court orders.

It was also like he invokes Elito and also seems to just invoke like this weird vibe. He's like, there's a vibe out there that the FDA won't comply, right? Like, what was he even referencing? Obviously, he referenced Elito's writing in this case, but otherwise, it was just unclear what he was even trying to point to. I mean, look, this guy obviously paid for a blue checkmark on Twitter

and is extremely online and has seen law professors tweeting that maybe, maybe the FDA shouldn't enforce this. And he's like, oh my gosh, you know, that seemed to be my vibe. I don't know. Maybe that's wrong. No, that sounds plausible.

Let's also play one of my favorite moments, which was when Judge Ho asked the Danko lawyer, Ellsworth. Pregnancy is not a serious illness. So, Your Honor, again, I think there are very good arguments, and we walk through them, and FDA walks through them as to why subpart H was correctly used. But it is truly irrelevant. So in the preamble to the subpart H regulation. And this question bakes into it the kind of incorrect claim that the plaintiffs are making that the FDA relied on subpart H for expedited approval of mifepristone. That is not what they did. Their approval of mifepristone was not expedited. They relied on the provision to expedite additional restrictions on mifepristone after they had approved it.

Also, sidebar, just like the 96 to 2000 process, this was like a four-year process that in many people's view was the opposite of expedited. It was actually way, way slower than it should have been because they were so cautious about this. But you would never know that from the plaintiff's characterization. Yeah. And given that Judge Ho is just like saying these things as if they were true, the lawyer for Danko was like, you know, can we just kind of take a step back here? And so let's play her efforts to engage with this shit show. May I correct a couple things about your understanding of FDA law? An approval is under Section 355, and 355D in particular sets out when FDA should approve a new drug application.

FDA, by regulation, had promulgated a rule for subpart H for drugs that allowed it to approve a drug under 355, but place use restrictions on that drug. There was also a moment where Judge Elrod, in this like really drippingly sweet voice, invited Danko's lawyer to take back some of the characterizations in her brief of Judge Kaczmarek. So let's play both the question and the response here. Your filings have been excellent. However, I am concerned about some rather unusual remarks in the filings. And I'm wondering, and these are remarks that I don't normally see or we don't normally see in briefing from very esteemed counsel, that talk about the district court, where there's comments that the district court defied longstanding precedent, the court's injunction was an unprecedented judicial assault, the court's relentless one-sided narrative, the non-expert court, equally groundless, bending every settled rule. This is much more

kind of remarks towards the district court that we normally don't see from learned counsel. And I'm wondering if you would have had more time and not been under a rush and probably exhausted from this whole process, would those have been statements that would have been included in your brief, or do you want to say anything about that? Your Honor, I think those statements reflect our view that the district court was very far outside the bounds of established... So you think it's appropriate to attack the district court personally in the case in that way? Your Honor... More than just the rulings. I don't think that those remarks, any of them, were intended as any sort of personal attack. They were an attack on the

analysis and the reasoning. But you can say we disagree with the analysis. We think it's all wrong for these reasons. But normally you don't say the court ruling is an unprecedented judicial assault. That's an unusual remark, don't you think? This has been an unusual case for reasons that you identified. If you think that's appropriate, then I just wanted to give you a chance to comment on that. I certainly think with more time, we may have ratcheted down some of that, and I appreciate Your Honor's comment on that very much. This is a case that has been litigated at breakneck speed. And I understand that. And that's what I thought originally. But I'm hearing from you that maybe you think that was appropriate.

And then there was another exchange that was not a response to the briefing, but basically an effort to get Ellsworth to walk back something she said during the oral argument. So let's play that clip as well. The state panel used false math to claim this certainty, which our brief walks through exactly why that math does not in any way relate to the 2016 or the 2021 changes. You don't mean false necessarily. You mean was mistaken, don't you? False in the sense of inaccurate. Yes, that's right. The math was actually correct, as in if you calculate two to seven percent times the number of women who have taken mifepristone, that would give you the number of women who the label suggests have had an incomplete treatment.

But what is false is to equ an incomplete treatment. But what is false is to equate incomplete treatment with a trip to the ER. There is no declarant who says that, there is nothing in the record that says that, and so that's where the inaccuracies come in. I just want to pause over this Elrod thing because it is just so peak some of the problems that we have talked about, which is you're saying the real problem is to call a lawless decision lawless. Like the real problem isn't the lawless decision. It's saying the decision was lawless. This has real like the racist act is calling out the racism. Yes. And it is just like

another piece of evidence. I mean, Justice Alito basically said similar things in his Wall Street Journal interview, where it's not just that they are doing all of these shameless, lawless things. It's like, I need you to tell me I'm doing amazing, sweetie, while I'm doing it. And it's just, you know, these are the free speech warriors. You're not allowed to say this is an unprecedented judicial assault in your brief. It is an effort to basically make it harder for anyone in the legal profession who actually practices to explain to the public what is happening. That is what they are trying to do, is preserve this kind of tunnel vision by suggesting lawyers and people trained in this can't actually explain to the public that this is all horseshit and batshit crazy. And instead, you need to be like, oh, well, I kind of reasonably

disagree, but you know, you're going to do something reasonable, too. It's just... Let's play one more clip from the Danko lawyer's argument, which involves another Judge Ho exchange. I don't understand this theme. The FDA can do no wrong. First of all, you'll agree, that is basically the narrative you all are putting forth. Nobody should ever question the FDA. This is unprecedented. The FDA, just last month, in response to Chairman of the Senate Help Committee, criticized the FDA for quote, unacceptable long-standing food safety failures. FDA is being blamed for the opioid crisis.

Your Honor. I made a Journal of Ethics article how FDA failures contributed to the opioid crisis. None of this has anything to do with this case. What I'm trying to say is why are we, it's a theme that you all are putting forward that is completely unnecessary. We are allowed to look at the FDA just like we're allowed to look at any agency. That's the role of the courts. Absolutely, Your Honor. I think some of that may have been prompted by the district court itself saying that it

was second guessing FDA. And so to the extent that part of our theme is that a court is not to second guess FDA, that is established in, I think, every type of agency APA review. We should also hear from Erin Hawley, who was representing the doctors here. And in this first exchange, Ms. Hawley basically says the quiet part out loud, making clear what the anxiety over Mifepristone actually is. So let's hear that. FDA allowed for mail-order abortions, contrary to federal law and common sense, and an end run around the promise of Dobbs that states may protect their legitimate interest in unborn life and women's health by regulating abortion.

She also gives up the game as to what the long-term plans for this pro-life movement is. And spoiler alert, it's not actually protecting all life, like providing family leave, paid family leave, and other supports for families. It's basically just about ending access to abortion, which, as she says, is tantamount to murder. So let's hear that. So I think there are a number of things that really differentiate this case from defendant's parade of horribles. First, as Dobbs recognized, abortion is different. They're talking about ending the life of an unborn child.

And Melissa just introed one of those examples, but there were quite a few times during the argument when Hawley just kind of casually used this kind of language and formulation. And then, you know, at the end of the argument, Judge Elrod decided to ask the government lawyer on rebuttal, like, how about that Comstock Act? How about we just go full blown? Distributing medication abortion is a crime. The Comstock Act is the 1873 Act that was intended to eliminate the distribution of quote unquote vice and all materials that could be used for quote-unquote immoral purposes through the federal mail. So big energy, amazing. Let's take this all the way back to 1873. A quick question about the Comstock Act. I understand that part of your argument is that the circuit courts in the early 1900s interpreted the act

to prohibit only unlawful abortions and that Congress acquiesced to that interpretation when it amended the act and other drug laws. That's kind of a synopsis. Has the Supreme Court or even a circuit court ever applied the recodification canon to circuit court decisions? These clips alone should make clear that this panel desperately wants to do something to limit Mifepristone. I mean, they were spending the entire argument basically finding different ways, throwing out different ways in which they would do so. And so I think like we're at least at 50-50 odds of some Fifth Circuit opinion order coming down that is some sort of judicially imposed nationwide ban or judicially imposed new set of additional restrictions on Mifepristone, like whenever the court decides this case, in which case, it's gonna go up to the Supreme Court again.

And just to echo what Melissa said about Hawley's rhetoric in this argument, I thought that's all entirely right as to the kind of big takeaways from this argument in this case. And just in terms of sort of broader takeaways about the post-Dobbs landscape, I do think that this litigation, and in particular, the way the lawyers are increasingly emboldened in the substantive arguments and the rhetorical choices they make, I think should make everyone realize that it is not at all far-fetched to suggest that the endgame here, as Melissa just alluded to, is clearly a nationwide ban of some sort, whether we're talking national federal legislation or a constitutionally imposed rule. That's where the advocates... Wait, wait, are you saying that Dobbs was not serious about this just being a state-by-state settlement

and this to just go to the states? I just assume they would at least pretend it was serious for like a one- to three-year period before shifting. I mean, it's not even a year old, Kate. I know. Come on. It's happening on – it's kind of at warp speed, and I think that people really do need to be cognizant of that.

So next week with the holiday weekend, we're going to be a little short staffed, so it won't be a full episode with all of us, but don't worry, we will still have something for your ear holes. We just wanted to offer a couple of shout outs. First of all, I would like to shout out my dear friend. Actually, she's not my dear friend, only in my head. Megan, the Duchess of Sussex,

who received the Miss Foundation's Woman of Vision. Your future dear friend. Manifested. I'm going to manifest it. I'm going to manifest it. Your future, dear friend. Manifest it. I'm going to manifest it. I'm going to manifest it. I went. It was amazing. I did not meet the Duchess of Sussex, but I was there.

I felt her energy. And honestly, if she just let me drive her home like I said I would, none of that near-catastrophic car chase stuff would have happened. So I just want to put that out there. We also want to shout out some of our fantastic listeners who now happen to be newly minted lawyers because over the last few weeks, they have graduated from law school. So congratulations to all of you.

And special shout outs to our particular favorite grads, the graduates of NYU School of Law, the University of Michigan, and Cardozo. We're super proud of all of you. And we really celebrate you and are looking forward to seeing all of the great things that you'll do in your careers. And finally, to talk about career-defining moments, we would be remiss if we did not shout out our girl, Leah Lippman, who continues to win everything. All the things. All the things. So we will note Leah has won the American Constitution Society's Ruth Bader Ginsburg Award for an early career scholar whose work has been transformative in so many dimensions. So congratulations for that.

And she gave a banger speech at the ACS National Convention. She and Dan Deacon also won the Richard Cudahy Award for Administrative Law in the Lawyer Division for their work on the major questions doctrine. Kudos to both of them. And Leah is going to receive the American Law Institute's Early Scholar Medal for a junior scholar who's done absolutely amazing work. This is such an amazing, big, huge deal. And we are so proud of you, Leah. You deserve

all of the things. Thank you for continuing to lift up these issues and to make your voices heard, even though people think it's also my voice. But that's great. So you actually own part of these awards. This is like, I love that. But this really is Leah Lippman award season and could not be more deserved. Season, the Leah Lippman season. Love it. Thank you both. We should have done this before the Fifth Circuit preview because now I'm embarrassed into silence and then I would have said fewer things.

But that would be betraying the underlying ethos of these awards. That's true. So there. Alright, so we'll leave it there for this week. Don't forget to follow us at Crooked Media on Instagram and Twitter for more original content, host takeovers and other community events. And if you are as opinionated as we are, consider dropping us a review.

In other exciting news, we have an upcoming live show in Washington, D.C. at Howard Law School with some special festivities afterwards. So if you'd like to come, there is an RSVP link at go.crooked.com slash strict live. We've also shared that on our Twitter page, and we'll be doing so on Instagram as well. So you can find it there, but it's go.crooked.com backslash strict live. There are signature cocktails. Don't spoil it. Don't spoil it. Sorry. I'm so excited. We can say their signature without saying what they are. I know. That's fair. That's fair. We spent so much time thinking about the names for these signature cocktails, though.

This is such a bleak beat to be on, but there are these occasional moments of just levity and delight, which was coming up with Signature Cocktails. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Littman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell. Ashley Mazzuolo is our associate producer. Audio support from Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez and Ari Schwartz. And digital support from Amelia Montooth.