Strict Scrutiny - Arbitration Rat

Episode Date: November 8, 2021

Melissa, Leah, & Kate recap the remaining cases from the first week of November -- and focus on Houston Community College and NYSRPA v. Bruen, which raises the question whether NYU has a campus. (It does.) Follow us on Instagram, Twitter, Threads, and Bluesky

In 2015, Vladimir Putin's number one public enemy, Boris Nemtsov, was shot and killed in front of the Kremlin. He was a relentless critic of Putin, corruption, and war in Ukraine. Then he was assassinated. I'm Ben Rhodes, writer and co-host of Pod Save the World, and I'm teaming up with Boris's daughter, journalist Zhanna Nemsova, to tell his story in Crooked Media's new podcast, Another Russia.

Together, we uncover what happened to one family and an entire country and ask whether another Russia is possible. New episodes every Monday. Listen and subscribe wherever you get your podcasts. More and more like Sam Alito every day. Every day. Every day. All right. You look like a 70-year-old New Jerseyan. You look gorgeous. Thank you so much, Melissa. 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 Leah Littman. And I'm Kate Shaw. Today, we will be doing a deep dive on the issues that the Supreme Court justices were focused on this week, which included whether NYU has a campus. Narrator voice, it does. More seriously, we will cover some SCOTUS-related news and then recap the two big arguments from this past week, Houston Community College versus Wilson and NYSERPA versus Bruin. And we'll also note some happenings in the third oral argument, Badgerow versus Wilson.

The court is hearing some big cases the second week of November. We'll briefly summarize some of those cases at the end of the episode, but focus on them more when we do the recaps. We did want to note, however, that we actually released a special preview episode about one of next week's cases, United States versus Vallejo Madero. And additional episodes like this are only possible because of the support of our GLOW subscribers. So if you would like to support the show and enable us to make more content like this, also to get access to our Zoom live shows, which are for GLOW subscribers only, please sign up to support the show at glow.fm forward slash strict scrutiny.

First, some news. We learned at the beginning of the oral argument in Houston Community College that Justice Gorsuch's tum-tum is bothering him. Justice Gorsuch has a stomach bug and out of an abundance of caution will participate in this morning's arguments remotely. So question, is he sick to his stomach because of how badly Solicitor General Prelogar pummeled him very nicely at the oral argument in United States versus Texas? Or was he so nasty to her because his stomach was upset? Or does he have COVID? I mean, they said he tested negative.

So, you know, he has not gone the Aaron Rodgers route of saying, you know, my doctors and I presented a homeopathic remedy that stimulated my immune system. And just, you know, I've been talking to my friend Joe Rogan about how to manage my immune system. And just, you know, I've been talking to my friend, Joe Rogan, about how to manage my immune system. And I'm taking, you know, anyways, so so that's not happened with our boy, Neil. I just want to add here about Aaron Rodgers, Shalane, run, girl, like, like, just you, you can do better than this run, girl, you can do better. I also think that Jordan Rogers and JoJo have been vindicated many times over in hindsight. When he was on her season of The Bachelorette, he was explaining why Aaron wasn't, you know, at the Meet the Family episode. And he's like, you know, he's kind of distant from the family. And, you know, some additional information came to light.

There may be reasons he's not at the table at Thanksgiving. And it's because he's injecting homeopathic remedies to avoid COVID. At some point, I'm going to watch like one episode of The Bachelor, The Bachelorette. I've literally never seen a single one in my life. So I'm just going to say, Kate, I've received some feedback that listeners are a little worried that you're not watching enough television to keep up with me and Leah. Oh, my God. They're like they're cutting me out of these communications directly. Intervention. You need to talk to Kate. She gets quiet sometimes. And you guys are talking about pop culture and we know she's clueless. Yeah. They're not wrong.

We're going to do an intervention. There's a regimen of some sort you all need to put me on. And you're just like, how do you get me? We're going to come up with it. We're going to put you on it. It's going to be lit. But it's definitely going to evolve. And then I think our listeners might want to hear it.

Like, what is, like, what are the three things I need to start with, like, to get myself literate? Five? I don't know. Just, like, you guys tell me. I think we're going to have to reserve a whole weekend for your yeah this will be like strict scrutiny's favorite things episode where melissa and i just share a crash course and how to become literate in television so i would love that and i have a feeling at least some of our listeners would too so i think maybe that's like going on the december calendar in other news scotus refused to vacate a death sentence, even though the government asked the court to do so because the defendant is likely cognitively disabled.

So this was a case called Koontz v. United States. There, the district court had denied Koontz's Atkins claim without a hearing, relying on a definition that required an intellectual disability to manifest before the defendant turned 18. But the American Association on Intellectual and Developmental Disabilities changed the definition to include impairments that manifest before the age of 22. So the government asked the court, in light of this information, to vacate and send this back to the Eighth Circuit on the ground that the Eighth Circuit would probably reach a different result given the change definition. Court refused to do so. Justice Sotomayor, in a dissent, which was joined by Justices Breyer and Kagan, criticized this, noting that

Kuntz's childhood was one that was marked by emotional, physical, and sexual abuse that he had cycled through child psychiatric institutions beginning at the age of four and had entered Texas's juvenile system at the age of 11. She also noted that at age 29, while in federal prison serving a life sentence for kidnapping and carjacking, Koontz and his co-defendant had attacked and killed an individual, another prisoner. The person who was a co-murderer in this event was a decade older than Koontz and had an IQ that was about 30 points higher. And it was that person who bound, gagged, and blindfolded the other prisoner before killing him. And again, she emphasized this to show that there was another person

who likely had more influence in this scene and in this particular crime than did the defendant, who, again, likely suffered from a serious intellectual or cognitive disability. And so she wanted the court to be aware of that history. And apparently, even though she brought it to their attention, it seemed not to matter. Okay, so should we shift to the oral argument recaps from the week? We did a same-day episode about the arguments over the two cases involving Texas SBH, so we will move on to the other arguments from the week, beginning with Houston Community College v. Wilson. This is the case about whether a government official has a First Amendment retaliation claim

where a governing body of which he is a part votes to censure him, based in part on his speech. Here, that speech included filing lawsuits against the college, robocalling, targeting other board members' constituents, giving interviews criticizing the board and its policies, leaking confidential information, etc. So after his censure, he filed a lawsuit arguing he had a First Amendment retaliation claim against the board for its censure of him, also for other actions that the board took in response to some of his conduct and speech. But actually, it was really only the censure that was before the court in this case. Can we just highlight some of the very interesting factual dimensions of

this case? I think it's, if you just listen to oral argument, I think you would come away from it thinking that Mr. Wilson is this incredible troll who is just like a thorn in the side of everyone on this board. But it may actually be a little more complicated than that. So the Houston Community College District is a system of community colleges in Houston, Texas. Texas, as you may know from this week's oral arguments, is not a state but an abstract entity, TM Justice Alito. But the Houston Community College District is run by a nine-member board with each member elected by the public to represent a single member district. And during the time that respondent Wilson was serving on the board, it was plagued by accusations of corruption and other kinds of financial malfeasance that culminated in

the longest serving member of the board being convicted on federal bribery charges. And this bribery conviction prompted Mr. Wilson to begin airing his criticisms of the board in the press and in telephone campaigns. And among the criticisms he lodged beyond simply the bribery was what he called Houston Community College's pay-to-play culture, like to be on the board, you had to be willing to sort of engage in these kinds of high stakes payment malfeasance issues. He also noted that there was a very suspicious $45 million deal that the community college board entered into to establish the community college of cutter. Cutter, as you know, is a Middle Eastern country, kind of far afield from Houston, Texas, but that the project involved 10s of 1000s of dollars

in luxury travel expenses for the board members. So this is just wild. I mean, I just wanted to flag it because it's basically like, again, Kate, this is for your education. If Friday Night Lights had a baby with community, like this is what happened in this case. I mean, it's just all of this weird booster, back-dealing board stuff in a community college in Texas. It's all there. And can I just say, I don't know community, but I do know Clear Eyes, Full Hearts, Can't Lose. And I have, in fact, seen Friday Night Lights. So just putting that out there. Clear Eyes, Full Hearts, Cutter Community College, Can't Lose. Exactly. Exactly. So lots going on here. So then did you understand my Texas Forever reference from last week? No, she didn't.

I don't think. Is that Friday Night Lights? Yeah. Yeah. Tim Riggins, Kate, come on. Okay, so I've seen some episodes. I'm not like a completeist of Friday Night Lights. Okay, you probably should have qualified that statement.

You haven't seen Friday Night Lights if you've seen, quote, some episodes. Buddy Garrity, Tim Riggins, I remember names of particular characters. I probably watched it. Lala Garrity. I applaud you though, Kate, because when she made that reference last week, you just looked in the camera and nodded knowingly. Which,

stranger. I applaud you. But now Leah's completely called me out, retroactively. My nodding was only successful for so long. So back to Friday Night Lights slash community college, aka Houston Community College Systems. And as we suggested in the preview, the case raises important questions about how to hold government officials accountable and whether governing bodies can try to hold them accountable for their speech. The justices seemed interested in what limits there were on remedies other than or in addition to censure,

like precluding someone from running for office again, expelling them, imprisoning them. Justice Thomas asked about this right out of the gate. I love that he was right there with imprisonment energy. What else could you do? Justice Sotomayor followed up on it as well, as did Justice Kagan and Justice Barrett. There were also questions about whether all governing bodies were the same, like a legislature versus a school board versus something else. I came away from the argument thinking the petitioner that is the board

was going to win,? That's unclear on what theory. Would it be a historical argument that governing bodies always had the power to censure and impose some sanctions on their members for their speech? Or is it because the censure here was counter speech by the government, that is the government's own speech that can't or doesn't violate the First Amendment? So here's some of the evidence for why I think the petitioner is going to win. First one comes from the chief. I was going to say that seems to me a very artificial distinction.

So under your view, the board could say everything it said in the resolution, except at the end say, you know, and we would adopt a resolution of censure, you know, but for that crazy Supreme Court decision in the Houston community college system, which said we can't do that. The fact that he characterizes the opposing position as that crazy Supreme Court decision, not a great sign. Sam, that is Justice Alito, also had these words about Respondent's position. That's a lot of words, but I really don't understand it.

That was a deep cut. Justice Kagan also had this kind of, so pre-Nyserpa versus Bruin, the next case we're going to talk about and the case that Justice has heard the next day, but I think she was like, you know, kind of priming things. Hydrating, preparing, conditioning herself. Exactly. But so it was this kind of preemptive burn on originalism. And this came in her questions to Sopan Joshi,

who is arguing in support of the board on behalf of the federal government. So let's play that here. I mean, does this strike you as a fruitful endeavor is to try to figure out what they did several hundred years ago with respect to these very specific kind of punishments. I mean, maybe we'll find them and maybe we won't, and maybe we'll just pick out

our friends in a crowd. So another reason I think the petitioner that is the Houston Community College system is going to win is that Justice Kagan, I think, very clearly obliterated respondent's proposed distinction between censure on the one hand, which would be permissible, and punishment on the other. And Wilson kept trying to say, even though this was formally a censure resolution, it included some punishment for reasons. And Justice Kagan just illustrated why those didn't make a ton of sense. So let's play those clips now. I think I'm still stuck on the distinction you're drawing. So let me give you a contrasting set of examples. In one, the legislature says, you know, we think he's walking around saying these terrible things about the board, and we're going to pass a resolution, call it a resolution, that just says he's fomenting distrust of the board

and he should be censured for that. Then in the other, they say the exact same thing, except they find a rule and they say, you know, in fomenting distrust of the board, he's violating rule ABCD against fomenting distrust of the board. Are you saying that the two should be treated differently? I mean, just to go further with the questions that Justice Barrett and the Chief Justice raised, your position makes two distinctions critical, and it's not clear

that either can carry the weight that you would put on it. The first is I say something on the floor of the body, and then I step outside and say something on the steps. That's one distinction. And the second is the board, the legislature, says he said terrible things. We hate them. We disapprove of them. We censure them on the one hand, and then says the exact same thing except adds the words anti-violated provision XYZ. And, you know,

it's just not clear that either of those distinctions should matter in the end. It was also very interesting, maybe even a little telling, that both justices Kagan and Breyer wanted to know whether Congress's censure of Joseph McCarthy back during the Red Scare would be permissible under their theory. So what does that mean? In addition to the invocation of the McCarthy era, there were also some rip from the headlines moments in SCOTUS arguments, such as when the assistant to the Solicitor General, drawing from the news, brought up the fact that a member of the House, Marjorie Taylor Greene, had recently been fined by that body. So here's a clip of that. My understanding, I read in the paper this morning that the House has fined another member

for violation of rules and those fines have accrued. Okay, so in terms of big takeaways, I totally agree with Leah that the petitioner, again, that is the community college board, is going to win. I think it could be one of those 9-0 cases, actually. I mean, there was a lot of probing of the respective positions of the two sides, but it seemed to me as though the court, maybe not all for the same reason, was really concerned about the implications of allowing a claim like this to go forward. So the big question, I think, is whether exactly as Leah described, the court is going to say, look, bodies like this have long possessed

the power of censure. We're not going to disturb that longstanding power by finding there's this never before recognized First Amendment right to First Amendment retaliation claim against such a censure, or because the censure itself is a form of government speech, and that government speech doesn't actually violate anyone's First Amendment rights. I think I definitely prefer the second route. One, for the reasons that one of the Kagan quotes we played sort of alludes to, you know, it just avoids this excessive reliance on history, which actually might be reasonably conclusive in this case, but is not always. And so I prefer a route that does not unduly kind of overweight history.

Wait, Kate, are you saying that the statute of Northampton doesn't resolve this case either? Whoa, whoa. Whoa, wait, wait. Maybe if you read it a little bit more closely. Okay, both of you need to take a swig of grog because you just brought up the statute of Northampton. Mead, I think actually is my preferred, is my drink of choice. Your medieval libation of choice. Drinking games, exactly. But whatever it is. All right. Throw one back. So that's, I think, why I prefer the kind of second route. And I actually think that

the petitioner's counsel actually offered in rebuttal a pretty good distillation of the dangers of disabling legislative bodies from responding in ways they deem appropriate to, you know, even potentially dangerous speech by their members. So maybe let's play that clip here. Elected officials these days can be their own independent misinformation machines, and they can do great damage to institutions, all on social media. And to say that bodies cannot point to their rules and say that violates our rules of conduct, and we want to punish you for that, that somehow it becomes a First Amendment violation precisely because the government relies upon its rules when asserting its interest is problematic. So look, that's kind of a deep current in the case, but didn't actually come up explicitly until the rebuttal. But I am kind of glad it did.

And I certainly don't think that a finding for the Houston Community College here, which, as Melissa, I think, rightly pointed out, is not necessarily the purest of actors either. But either way, confirming that they have the power to censure members is in no way going to solve the problem of misinformation peddling by, you know, elected officials. But I do think that finding for Wilson here could be a really big problem, right? So that, you know, the First Amendment is already an enormous looming obstacle to regulating our way out of the problem of misinformation and disinformation. But a case that basically further disables government bodies from responding in ways like this could, I think, make the problem even worse. So I was heartened to hear that there didn't seem to be a ton of sympathy on the court for a finding in Wilson's favor.

Again, even with the Melissa's, I think, maybe well-founded sympathy for some of Mr. Wilson's project, the broader principles here, I think, like maybe well-founded sympathy for some of Mr. Wilson's project. The broader principles here, I think, are pretty dangerous ones. To be clear, I'm not suggesting that Mr. Wilson is like a great actor here. I mean, I do think it's fair to sort of think of him. He's basically Aaron Brockovich, who I have heard of. I mean, like I wouldn't go that far either. I mean, like dude is obviously kind of a troll on this body. But I mean, like maybe his trolling is warranted.

And it is actually interesting that maybe the antipathy for whistleblowers and the fears of an embiggened First Amendment managed to create enough room for some consensus here from both sides of the court. Yeah, interesting. Good point. So before we go on to the next recap, a word from our friends at the American Constitution Society. If you're enjoying strict scrutiny, we encourage you to also check out Broken Law, the podcast about the law, whose interest it serves and whose it does not, produced by our friends at the American Constitution Society. Broken Law covers a wide range of legal topics from reproductive rights to the broken criminal legal system to the urgent need for Supreme Court reform. If you care about the rule of law, our democratic legitimacy, and ensuring that the law is a force for protecting the lives of all people, check out Broken Law. The podcast is designed for lawyers and non-lawyers alike because the law impacts us all. Subscribe to Broken Law today wherever you get your podcasts. So let's go on to another case. This one, again, we did not get to

preview it. This is Badgerow v. Walters, and it's a case about federal court jurisdiction over a certain kind of Federal Arbitration Act case. And so just to put out some definitions so everyone's on the same page, arbitration is a form of dispute resolution that takes place before an arbitrator rather than a judge, although notably many arbitrators are actually former judges, so it's not as though they don't have experience with the system. But it is a form of private dispute resolution with a private adjudicator. Not only does it have a private adjudicator, it often proceeds without the kind of formality, procedures, and publicity that typically attend a judgment in a court case. And so the specific question in the case here is, when do the federal courts have jurisdiction to

confirm or vacate an arbitration award? And specifically, if a federal court would have jurisdiction over the underlying claim or case that is the subject of the arbitration proceeding, can they confirm or vacate an arbitration award under the provisions of the FAA that govern the confirmation or vacation of arbitration awards? So those provisions authorize a party to, quote, make an application to the United States court in and for the district within which such award was made, end quote. And those provisions differ from the provisions governing court orders to compel arbitration, which provide that a party can ask for an order compelling arbitration in any U.S. district court,

which, save for such agreement, would have jurisdiction of a suit arising out of the controversy between the parties. And meaningfully, in Vaden v. Discover Bank, the Supreme Court held that federal courts have jurisdiction over motions to compel arbitration only if they would have had jurisdiction over the underlying controversy in the first place. And the question in this case is when federal courts have jurisdiction over cases seeking the confirmation or vacation of an arbitration award. One party says basically never since they don't raise federal law issues. That's the petitioner's position. But an odd consequence of that rule would be that diversity cases raising state law claims do get into federal court, but non-diversity cases raising federal law claims don't. The other side would incorporate a look through rule and say that federal courts

have jurisdiction where a federal court would have jurisdiction over the case but for the arbitration agreement. But the oddity with that argument is it effectively imports language from Section 4 of the FAA, which governs compelling arbitration, into Sections 9 through 11 of the FAA, which govern confirmation or vacation. So here is a fun out-of-context clip of the chiefie. So you could call him an arbitration rat or a judicial lion, I suppose. And this picked up on this Breyer question. That's the main argument. What we're doing here normally is we are having, let's call him an arbitration rat. There is the guy who loves arbitration, and then there is the rat who hates it, although he agreed to it. Okay? Now, he will express his

ratitude in many different ways. So Lisa Blatt was arguing for the respondent in this case, and she brought her usual, I'm Lisa Blatt, what are you going to do about it, energy to the podium. So let's play one clip illustrating that. I'm not saying it's an easy case for you. I'm saying our case is better than his case. As well as her concluding remarks from her time at the lectern. That's the best I got. Wouldn't you love to end class like that? Just like, that's it.

Maybe we should start ending our podcast that's the best we got or i don't know what if a justice wrote that at the end of the dissent or majority opinion like i tried what what else you got nothing Nothing. Also throughout the argument, Lisa kept telling Justice Kagan after Justice Kagan would ask a question that was skeptical of Lisa's position. That's a fair point, which I think is just a little odd to like grant a Supreme Court justice that they're making a fair point. There's no other advocate that would do that, literally. No. Game recognize game, Elena. I guess. But it made me think back to a previous argument where Lisa did not think Justice Kagan was making a fair point and was instead making a fundamentally wrong point. So let's flash back to this moment from the oral argument in Carpenter

versus Murphy. No, that's fundamentally wrong in several respects. First of all, the 1901 Act called for fundamentally wrong. It's fundamentally wrong because the 19, well, it's factually wrong. The tribe, the Allotment Act called for factually and fundamentally. Sootman Act calls for it. Factually and fundamentally. So was Kagan excited to have gotten an upgrade to fair in this argument? Exactly. I feel like she should have noted, like, I guess I have improved in your eyes, Lisa, haven't I? It's a strong upward trajectory for you, Justice Kagan. Maybe in two years, I'll make a good point. Something to work toward. Right. Exactly.

Exactly. All right. So I feel like we've made our listeners wait long enough. We should talk about NYSERPA versus Bruin, which really was – You mean the statute of Northampton. We will definitely spend some time talking. I've got to refill my glass about the statute of Northampton. Melissa is making little pew, pew, pew motions in the background.

Just FYI. See, normally I'm so glad there's no video of our recording, but occasionally I'm like, oh, the world would have liked to see that. Pew, pew, pew, pew. We have to laugh so we don't cry. We just have to, right? That's the only way to handle, well, all of it right now. All of it, of course, is the challenge to New York's centuries-old, but probably not much longer for this world, may-issue permitting regime, which requires an individual to show special cause above and beyond the needs of the ordinary public

in order to carry a weapon concealed in public. And as we said when we previewed the case with Joseph Blocher, the case raises a number of questions. So what legal test the court would use and really announce for courts evaluating laws like this one? How the court would weigh the relevant history, including but not limited to, the statute of Northampton? How often the statute, the aforementioned statute of Northampton, a 1328 statute for those of you keeping track, would come up? The answer was more than twice. And I think it's interesting when and how it came up, actually. Even though we were joking about the statute, I actually do think it's kind of revealing sort of when and how it came up.

So Justice Gorsuch first brought it up at the end of Paul Clement's first turn at the lectern. I know you've had a substantial debate with your friends on the other side about the statute of Northampton. We haven't heard about that today, and I just wanted to give you a chance. He was like, it's been 24 minutes and no one has mentioned the statute of North Hampton, and I'm at home with a stomachache and I want to wet my whistle with a glass of mead, and no one has given me occasion to do that. So anyway, so he brought it up,

then Justice Barrett brought it up. Actually, in this kind of interesting two-part question that she posed to New York Solicitor General Barbara Underwood. General Underwood, do you think Heller was rightly decided? I think there is a lot of support historically and otherwise for it. So I'm quite content to treat it as rightly decided. I think there was an argument on the other side, too, but that's true about many of, maybe most of the difficult questions that come before this court. I have no quarrel with Hill.

Do you think that we are bound by the way that we characterized history in that opinion? You know, Mr. Clement has pointed out that in some respects, the way that we treated, say, the statute of Northampton and is different from the way that you argue that we should interpret that and the follow on, you know, statutes and the colonies. You argue that we should understand those and some other cases differently than we did in Heller. Are we free to do that? And even though we're talking about the statute of Northampton, I just want to pause for a moment on these two questions. I'm curious to get your reactions to Barrett. Barrett seemed throughout the argument more sympathetic, I thought, to the general position that some regulation of guns is,

you know, necessary and constitutionally permitted. At one point, she said to Clement, everybody agrees there has to be some regulation. And I was like, I don't know about everybody. Have you talked to Sam Alito about this stuff? I'm not sure. But I thought that was pretty interesting. But then the question she posed to Underwood was like in a very different spirit, maybe. Like, it seemed pretty trolly to me, actually. Like, you know, are you here, like, actually trying to, you know, make an here, like, actually trying to, you know, make an end run around Heller? Because, like, throughout the argument, there were these suggestions that the permitting officials in the state of New York are, like, just deny every

application. I think that's, like, a right-wing mythology that lower courts and officials in blue states are just, like, working as hard as they can to deny law-abiding citizens their, you know, God-given Second Amendment rights. And so I couldn't tell whether Baird a little bit was, like, are you also part of the resistance to Heller, Barbara Underwood? Like, was that the spirit of the question? Or was it like to actually give her a chance to lay to rest that mythology? And Underwood, I thought, handled that really well and was like,

yeah, I mean, Heller had a lot of support. The opposing position had a lot of support. I have no quarrel with Heller. And I actually thought she handled that really well. But it was really sort of strange and surprising question. Because it was like, who cares what your personal opinion about Heller is? That's not really the question here. So that was interesting. But then, you know, she gave, I think, also kind of an opportunity for Underwood to speak to this sort of important question, which is how binding are a lot of Heller's descriptions of these specific historical

moments and cases and treatises? And if our understanding of history has evolved in important ways since then, like how bound are we by some of the stuff Heller said? And I think that's a really important question in the case and suggested to me, at least, that Barrett was open to, you know, the fact that we have learned a lot about the history in the intervening 13 years. And so I actually took that to be somewhat promising from the perspective of Barrett's openness. But I didn't know if you guys read those questions similarly. I mean, I read the, do you think Heller is correct as mostly Amy Trolley Barrett and suggesting that New York's position in this case was utterly inconsistent with Heller and trying to relitigate important points that Heller had resolved.

You know, I agree, of course, her questions were not either as insane as Justice Alito's nor as mean and nasty as Justice Gorsuch's. But like those bars are so low that I'm just not sure that that really tells me anything that significant. That's fair. So the other thing I think is interesting, and we haven't mentioned it, is, you know, this came right on the heels of the argument in SB 8, where there was a lot of discussion about what would happen if local officials decided to do an end run around, say, for example, the Second Amendment and, you know, to do a private delegation enforcement scheme or alternatively anything that local officials might be able to do to make it harder for people to exercise their constitutional rights. So I sort of took this question as kind of in that spirit, like, you know, what can local officials do to get around our own pronouncements, like Heller or like anything else? And she seemed to be sort of taking up that position again. Yeah, interesting. Then noted squish Chief Justice John Roberts had the audacity to raise questions about whether the statute of Northampton should decide this case at all. But I mean, what is the appropriate analysis? I mean, you sort of, we, I think generally don't reinvent the wheel. I mean, the first thing I

would look to in answering this question is not the statue of Northampton. It's Heller. So basically, if you were playing our strict scrutiny statute of Northampton, NYSERPA versus Bruin drinking game, and had been taking a swig of grog or mead at every time, you would have been hammered at this point, I think, don't you? If it was a big swig, for sure. And maybe one point to make before we leave our Northampton victory lap, because of course we did predict that there would be ample discussion of the statute of Northampton at this argument. I actually think it's really interesting that Clement didn't lead

with Northampton and in fact didn't actually bring it up at all or really much history at all. He talked about Heller a lot. But that's because it doesn't work for him. I think he kind of is acknowledging that in the choices that he made with what affirmatively to bring up and that Gorsuch basically had to like drag it out of him. Okay, can we talk about this 1328 statute? If you think that statute is so helpful to your case, I think, you know, Clement is obviously a good enough advocate to know that and to bring it up. And the fact that he, again, had to wait for Gorsuch to say, like, I've been waiting and you haven't brought up Northampton and then to sort of respond and try to argue it,

to me, I think is quite revealing as to how strong he thinks the history is in support of his position. What Paul Clement did actually seem to lead with, which I take real issue with, was the whole question of New York City universities and whether some have campuses and some allegedly do not. And this became a real point of controversy. Yes, I know, listeners, I, too, was astonished. But this, in fact, really did happen. So let's hear the good former Solicitor General opine about the prospect of campuses in New York City. You know, they're not in Manhattan. They're in Rensselaer County.

The Chief Justice started with universities, and you said that that would be all right. Did you mean that? Yes, I did mean that. Because that's open for, you know, anybody can walk around the NYU campus. Well, NYU doesn't have much of a campus. I would go back to New York, and I think you'll find that that's wrong. Similarly, the Columbia campus. Columbia's got a campus, and I don't know whether they restrict access at all. And, you

know, and maybe, you know, if they don't restrict access to parts of the campus, maybe those are parts of the campus where they wouldn't enforce the policy anyways. So that was the first colloquy on this point. And here is strict scrutiny fanboy Stephen G. Breyer stepping in to defend the honor of New York University. How? I mean, so far we've been, to my mind, I think NYU does have a campus. You're not certain. All right? Not to be outdone by that defense, one Justice Clarence Thomas also evinced a certain curiosity about New York City and the distinctions between other parts of the city and those in close proximity to NYU and its faux campus. Here he is. Mr. Clement, where does Mr. Nash live?

Mr. Nash lives in Rensselaer County, New York. Is that close to NYU? So again, I was a little in my feelings about this. Of course NYU has a campus. Its campus is New York City. Its campus is the West Village. It has a Metro Tech campus in Brooklyn. And then Paul Clement actually added insult to injury by saying Columbia had a quote-unquote real campus, right? Because it has gates? Because it locks out people from Morningside Park? Like, what? I'm just going to say, I wouldn't count out that honorary degree from NYU. I just wouldn't. That seems very fair. So I took from both the discussion of the statute of Northampton,

as well as the discussion of whether NYU has a campus that the court is going to say there is a right to carry in public. And what are they going to say about how, where, and whether states can restrict firearm possession in public? Yeah, I think that's right as to the bottom line prediction. I mean, it seemed possible to me coming out of the argument that they're going to do something somewhat Heller-like, which is basically to say, we actually aren't going to resolve hard questions about how laws like this get scrutinized. We're going to say, however we approach this question, New York's law fails, which is basically what they did in Heller as to the D.C. handgun ban. I mean, that's going to frustrate a lot of people who want some huge, muscular, prescriptive pronouncement from the court about how, you know, skeptically lower

courts need to look at all gun restrictions. But it also will be, I think, unbelievably unhelpful in states like New York and other places that have these kinds of permitting regimes in place that won't necessarily know if they can modify their permitting regime somewhat without basically converting their, you know, schemes to like a shall issue regime, which, by the way, those aren't all the same either. There was this really, I thought, kind of revealing and frustrating moment in which, you know,

Clement said something like, oh, this was the Harry Met Sally invocation, right? He basically said, when he sort of pressed a little bit about- A movie that also takes place on NYU's alleged campus, I will note. You know, NYU's campus is more of an abstract entity, Melissa,

or so I hear, much like the state of Texas. I mean, Texas forever. It's like infinite. But for folks who didn't listen right there, is this – so Clementa says something like we want basically what – there's 43 states in which he says there are basically these shall issue regimes in which if you apply and you're an adult and maybe you'd have to do some safety instruction and maybe satisfy a good moral character test, which also has some discretion baked into it, then you get a gun. You don't need to show any special need for a gun for self-defense or to carry a gun for self-defense. So he basically said, what we want is what they're having. And so that was the reference. Exactly. But it's like,

but they don't all have the same thing. So it's actually not that helpful to say we want what they're having. But, you know, to the point about university campuses, and there was a lot of discussion as well of, you know, sports stadiums and Times Square, it was really clear that even as I think they are likely to strike down New York's, you know, concealed carry regime, they're really interested in carving out some space for states and localities to regulate and maybe prohibit the carrying of concealed weapons in what are known as sensitive places like those college campuses, maybe the subway, maybe Times Square, maybe sports stadiums. I don't know if they're going to try to define the category of sensitive places. I'm not sure if they're going to even be able to produce a majority, if they're going to

discuss the question of sensitive places. But it matters a great deal what regulatory latitude they continue to give states and cities like New York if they are going to basically strike down New York's regime. So maybe let's play a clip now of the justices pivoting right from campuses to sports stadiums. The point I'm trying to make... But you can't say, you know, there are 50,000 people in one place, you know, a ballpark. There are 50,000 people in one place, a ballpark. There are 50,000 people in one place. They're all on top of each other. We don't want guns there.

The city or the state couldn't do that? I think they might well be able to because, again, you can't get into Yankee Stadium without a ticket. I'd have to understand. I don't know every jurisdiction. I don't know enough about Yankee Stadium. But, you know, a lot of these stadiums are not run by the government anyway. So if a private entity wants to restrict access, I don't know where the state action is. Suppose the state says no protest or event that has more than 10,000 people. I think that might be a trickier. So I kind of took this whole inquiry as perhaps evidence that regardless of what happens here,

they're just teeing up a spate of continued litigation on this question, which I think is exactly what some members of the conservative wing want to see. Like, they're probably not going to have the votes for a sweeping kind of opinion here that like sort of does everything that Thomas and Alito want. But I think if there's enough confusion, given what is or is not permissible after this, what you will have are these, you know, basically an opinion that is an invitation for more debate and discourse on it. And that just fuels more petitions, possibly more cert grants, and you will incrementally perhaps get a more beefed up Second Amendment. That's definitely possible. I mean, I think you'll either way, there just

isn't a lot of case law on these kind of sensitive places questions. So I do think that that's, you know, very likely going to be the next frontier. Well, it's like the abortion situation. Like if they decide to move back viability or take away viability, instead what you'll have are just all of these lawsuits about is 10 weeks okay or six weeks okay. I mean, I think that's exactly like, is this sensitive? Is Giant Stadium sensitive? Is, you know, is the church sensitive? All of those things. Right. And honestly, like, I didn't think Paul Clement was particularly able to answer some of these questions about sensitive places. Right. There was this very weird colloquy about the subway. And I think what the chief justice is trying to do is figure out how those cash out in the real world.

So I'll give you a few more. New York City subways. So you know I think that the question of whether you could restrict arms in the subways you know I mean you'd have to go through the analysis I think and say you know is there restriction on access generally I suppose. No I mean I got the analysis all three parts of it. Like how does it cash out? What does it mean? You know I don't know how those are gonna cash out in particular cases, because I think the way that you would normally deal with that is, you know, look at all the briefing

we had in this case on the history of these various things. And so, you know, on behalf of my individual clients, I suppose I could give away the subway because they're not looking to go, you know, they're not in Manhattan. The one thing about this Clement answer was like, it just seems so oddly, I mean, obviously it was responsive to the question. He says, I'm basically, you know, willing to give away the subway because my clients are in Rensselaer County. But it's like, he's, this argument is bigger than his clients in Rensselaer County. So it was like, we actually, it was just this weird flip answer that didn't actually get to the heart of the question of whether

the subway is the kind of place where it should be permissible to prohibit concealed weapons. Someone else who seemed to have a lot to say about the subway and also seemed to know that the subway runs through NYU's campus was Justice Alito. Could I explore what that means for ordinary law-abiding citizens who feel they need to carry a firearm for self-defense. So I want you to think about people like this, people who work late at night in Manhattan. Might be somebody who cleans offices, might be a doorman at an apartment, might be a nurse or an orderly, might be somebody who washes dishes. None of these people has a criminal record. They're all law-abiding citizens. They get off work around midnight,

maybe even after midnight. They have to commute home by subway, maybe by bus. When they arrive at the subway station or the bus stop, they have to walk some distance through a high crime area, and they apply for a license, and they say, look, nobody has said I am going to mug you next Thursday. However, there have been a lot of muggings in this area, and I am scared to death. They do not get licenses. Is that right? So Justice Alito really brought strong Trolito vibes to this argument, because in addition to gesturing toward the plight of,

you know, service workers, Justice Alito, as we predicted, invoked the brief, suggesting that the origins of this New York law were rooted in racism and bias against communities of color. So let's play that clip here. There's a debate about the impetus for the enactment of the Sullivan Law, is there not? There are those who argue and they cite support for this interpretation that a major reason for the enactment of the Sullivan Law was the belief that certain disfavored groups, members of labor unions, blacks and Italians were carrying guns and they were dangerous people and they wanted them disarmed. I like to call this Emma Lazarus Alito, right? Give me your tire.

No, no, no, no. I will one up you Emma, Emma Lazarus Alito, and say this is proletariat Alito. Because when has Justice Alito ever evinced such sympathy for labor unions? This is the guy who authored opinion after opinion after opinion, eviscerating public sector unions. And not to say I told you so, but I did predict that it would be Sam Alito, who would be the first justice to bring up this brief. So here I am making the following bold prediction. And it highlights some of the stories of particular clients, you know, who have fallen under the ambit of these restrictive gun laws. Can I ask a question? Could this brief go either way here? Because I know one justice who's going to be like, inject this brief into my veins.

I mean, no, this brief will go one way. It will go into Sam Alito's mouth at oral argument and Justice Thomas's. Sam, I have your number. I don't know. Is Das Capitalito? I don't know. Das Capitalito. Oh, that's good. It might be too duplicative with our Das Capitalito, but I think it's sufficiently distinct. Yeah. No, I think our listeners can understand the difference. DOS copy Toledo. This is a pretty good one. Oh, wow. He cares about the working folk.

He does. He does. The working folk, however, were not so sure that DOS copy Toledo had their true interests at heart. I know. Very strange. Very strange. Very strange. Because 32BJ, a famous SEIU, Service Employees International Union local in New York, had some thoughts. So Kyle Bragg issued this statement. Justice Alito knows nothing about the lives of doormen and janitors in New York City or anything about the lives and struggles of our members.

I condemn his self-serving use of our members to advance ignorant, uninformed, and offensive stereotypes about New York City and the subway system. People like Justice Alito, bracket, Trollito slash Das Capitolito, too often only care about the plight of our members when they can use them as props to undermine the interests of everyday people and push a backwards right-wing agenda? Where was his concern for our members when he betrayed them with his vote in the Janus decision or the Epic security case or the Cedar Point nursery ruling? Justice Alito should keep our name out of his mouth. Oh my God. We're just like standing ovation. That was so amazing. I'm so glad you read the whole thing. So many receipts.

Also kind of a meme. You know that meme that's like, you should have just sat there and ate your food. That's what that was. Also, the title of this press statement was amazing. The title of it is actually, Statement from Kyle Bragg on Justice Alito's ignorant comments about New York City

and 32 BJ members. Like, oh my God. I think future episode titles should be statements from gloss about Justice Alito's trolling comments and Neil Gorsuch's nasty references to the statute of Northampton. Groucho Gorsuch. nasty references to the Statue of Northampton. Grouchy Gorsuch. Groucho Gorsuch. It's just, yeah. And then we'll just blast them out in press release form.

I love it. Did you notice the Game of Thrones reference in here too? No. Because you don't watch TV, Kate. I've seen Game of Thrones every single episode actually. Justice Alito knows nothing. Jon Snow, you know nothing. You know nothing, Jon Snow. I had missed that.

I had missed that. I did like the Justice Alito should keep our name out of his mouth. Which was a little menacing, too. Like, come up here, see what happens. Next Justice Alito Federalist Society speech, you know, you know, he's going to talk about the threatening statements from the awful labor agitators who are threatening him. No, this is going to make his next grievance list. Oh, so good. And, you know, more seriously on the subway point. So obviously, Alito was opportunistic in his invocation of both working people in New York City and of the amicus brief that we just talked about. Also revealed himself to have just like ridiculous stereotype conception of like what like the kind of crime ridden like late night

subway in New York City is like. Like it was just preposterous. It was Charles Bronson, escape from New York. Yeah. You don't know what I'm talking about, do you, Kate? I mean, no. The reference that kept coming to my mind was Bernie Getz. What's the Charles Bronson, Escape from New York? It's a Charles Bronson movie, Escape from New York. It is very Bernie Getz-like. It's of the 80s era.

Yeah, 1980s New York, the subway kind of being, you know, a little bit like purgatory. Okay, so yes, that was exactly the energy that he brought, to the point that he not only seemed to suggest that law-abiding people had very good reason to want to have concealed weapons on places like the subway and that, you know, government shouldn't be able to limit that, but he also seemed to be saying, like, maybe there was a, you know, direct as opposed to inverse relationship between how crowded a space was and how necessary having a concealed weapon was. He was like, oh, the subway actually is a place where literally you should probably be required to have a firearm, was it seemed to be the suggestion that he was offering.

And the chief seemed weirdly sympathetic to this also, like to suggest that there was a more pressing need for a concealed weapon for self-defense in urban areas like New York City. And, you know, honestly, the chief coming out of this argument, Barrett seemed more, you know, reasonable than I anticipated. And the chief seemed like the old John Roberts. It was like, oh, right, that's you. I feel like he is not in play for any kind of moderate compromise position in this case, at least from the tenor of his questions. So, Kate, let me just correct myself because I don't want to lead you astray in these formative moments of your education, your popular culture education. Escape from New York is a movie starring Kurt Russell. And Charles Bronson was in a number of movies about New York in the 1980s, including Death Wish.

So I did not mean to conflate them. But you should watch both. Both, Death Wish and then also Escape from New York. Yeah. Cool. All right. Those are going on the list. Some other continuing trends from previous arguments into this argument.

First, more tag teaming from the gorgeous ladies of the Supreme Court, Justice Sotomayor and Justice Kagan. Let's play one of those clips here. I don't think that was Justice Kagan's question. Oh, I'm sorry. It was on a broader level, I believe. She can correct me if I'm wrong. So I totally love Glascotus.

I think that's fantastic. I think we should keep that. And aren't they talking about abortion? I mean, it's certainly true that access to abortion varies state by state. Look at the Lone Star State right now. I thought this was super troll-y, and I kind of loved it. They're like,

do you know of any other fundamental rights that aren't treated as fundamental rights? Can you think of any, Alayah? Just keep thinking real hard. I'm going to noodle around on it, Sonia. I'm going to noodle. Hmm. Let's see.

Do we have any other cases where people allege that a state has completely taken away a fundamental right? Correct me if I'm wrong, girl. I did feel a little bad that Underwood was clearly just like a prop for that exchange or performance. And at one point she was like, oh, I'm sorry. But it was like, oh, no, honey, it's fine. Like you didn't do anything wrong. It's not about you, girl. It's not about you, girl. It's not about you.

Another trend that repeated itself was Justice Breyer, unfortunately, misunderstanding our advice and taking up Justice Kagan's argument time. So I really wanted to know what Justice Kagan had to say in this moment. Unfortunately, the chief gave the mic to Justice Breyer. So let's play that clip here. Well, I think my friends would tell you that, you know, the whole city of New York is that way. And I think there are a lot of people in New York and New York may have a lot of reasons to have regulations that are a little bit different than in upstate New York, where my individual petitioners reside. I don't think that they can take all those people in New York and deny them my individual petitioners reside. I don't think that they can take all those

people in New York and deny them of their fundamental constitutional rights. How do we do this? Justice Breyer? How? So I guess one final note for me on the oral argument, and that was Brian Fletcher, now principal deputy SG, formerly acting solicitor general, was fantastic and did a great job conveying how much history there was supporting the state's restrictions here. So we would ask that question by looking to the history and tradition of the Second Amendment. And in Tennessee in 1821, you couldn't carry a pistol at all. In Texas in 1871, you had to have a showing of need if you were going to carry a pistol.

And that showing of need was actually much less favorable than the New York regime. In Texas, in West Virginia, and in Alabama, in those laws that we cite, need to carry a firearm was a need that you had to show when you were prosecuted for violating the law. It was essentially a self-defense requirement, and you had to persuade a jury in a criminal trial that you had an immediate pressing need to be carrying the gun when you were carrying it. The laws of which New York's is one, but by no means the only example that began to become more prevalent in the 20th century said, we're going to make that determination of need ex ante. We're going to require a showing of good cause.

New York has done that for a century. Too bad, not supported by the statute of Northampton. No, but I am glad you brought up, Brian, because I was worried that our, you know, fangirling out rightfully, I think, over Elizabeth Prelogger, who's fantastic, could potentially be understood as somehow like throwing shade at Brian Fletcher, who had been serving as the acting, which is just like completely not the case. He's just such a great advocate. And I think he's still going to be doing tons of arguments for that office. So I think we can say Prelogger is fantastic, but also that, you know, Brian, too, is just an excellent lawyer and Supreme Court advocate and was great in this argument. To be fair, like, I think the reason why we were fangirling is because it is so rare to see female advocates. And if we saw more of them, we could spend more time on Brian and the other men instead

of fangirling on the women when they come before us. So again, greater diversity leads to better outcomes for everyone. There we go. Get more women arguing so we can compliment Brian Fletcher more. Just give us more. Do it for Brian. Exactly. Let's go, Brian. That can be our call. Too close, too close. Okay. So let's briefly mention the cases that the court will hear next week we're going to spend more time as we said at the outset of this episode recapping those arguments after they happen because we are short on time but one case the court will hear next week is united states versus vallio madero this is a case about whether the united states can constitutionally exclude puerto rico residents from receiving SSI benefits

consistent with equal protection principles. It's a fascinating case. And because I did a full mini episode on it, I won't get into it now, but we probably will spend some time recapping it after the argument. Another case for next week is FBI versus FISAGA. This is a case about the state secrets privilege. The question about whether information that the government thinks would harm national security if it gets out is that subject to some kind of privilege. State secrets privilege was recognized by the court in Reynolds versus United States, a 1953 case, not the polygamy case that is one of my favorites. As a matter of formal agency processes, in order to assert the privilege, you have to file a formal claim from the head of the department with the information to be declared privileged. So this is a declaration and the head

of the agency and the attorney general has to be on that particular declaration. And the declaration has to show that there's a genuine and significant harm to national security if the information is released. And it can only be privileged to the extent necessary to prevent that particular genuine and significant harm to national security. The privilege has obviously become more controversial in recent years, mostly since 9-11, and it's been used to shut down challenges to warrantless wiretapping, torture, and other lawful abuses of the law and the rule of law. So this lawsuit was brought by Muslim Americans who allege that the FBI paid a confidential informant to observe mosques and to

gather information based solely on the religious identities of those being surveilled. And the informant, Craig Montiel, came to regret his involvement and testified that the FBI tasked him with spying on Muslims without any real targets and asked him to stir up trouble to see who he could attempt to provide damning or problematic information. As we noted on a previous episode, mosque leaders reported Montiel to the FBI and got a restraining order against him because they thought he was a terrorist. The government then asserted the state secret secrets privilege and sought to dismiss some of the claims on state secrets privilege grounds. One thing that's of note here is that this is a domestic program, which is arguably a greater extension of the state secret privilege,

which could in some ways be about secrets of the state from other states. You know, the state secrets privilege is sometimes described in foreign relations terms. And this fact just called to my mind a really wonderful article by Shireen Sinar at Stanford Law School called Separate and Unequal, the Law of Domestic and International Terrorism in the Michigan Law Review, where she describes how the government treats United States Muslims as international threats, even when they might not have a lot of foreign ties, while it treats white nationalists as domestic threats and subject to a different regime. issue, whether the Foreign Intelligence Surveillance Act establishes a distinct procedure for resolving claims regarding classified information regarding surveillance and displaces the state secret's privilege. FISA requires an in-camera process where courts will look at the information in chambers and determine whether that information is privileged and whether surveillance was lawful.

The other case that will be argued this upcoming week is Ramirez versus Collier. This is a religious freedom challenge to a state's execution protocol. The case challenges Texas's policy that allows a Capitol inmate's pastor or religious advisor into the execution chamber, but forbids them from laying hands on the person as they die, and also prohibits them from singing prayers, saying prayers, or whispering or otherwise vocalizing prayer. The case is important in part because of how it fits into Supreme Court procedure and the Supreme Court's management of its docket, but it also follows on a series of cases I wanted to highlight.

So back in 2019, the Supreme Court reversed a Court of appeals stay of execution for Dominique Ray. Alabama had refused to allow Ray to have a religious counselor of his denomination with him in the execution chamber. The Supreme Court didn't really explain its reasoning. It just said a court may consider the last minute nature of an application to stay execution. The problem was it didn't make a ton of sense to say Dominique Ray had waited too long to challenge Alabama's decision not to afford him an imam. Ray was Muslim. As Justice Kagan explained in her powerful dissent in that case and as a district court had found, the state denied Ray's request for the imam to accompany him into the chamber on January 23rd. Ray then challenged the state's decision on January 28th when his execution was scheduled for February 7th. Five days is certainly

not that long a time and challenging an execution more than a week in advance is hardly a last minute request. The Supreme Court received a bunch of pushback for condemning this man to die without his spiritual advisor, particularly since it did so on the basis of such specious reasoning. And the court appeared to reverse course in a decision named Murphy versus Collier, in which it stayed the execution of a Texas prisoner who requested a spiritual advisor to accompany him into the execution chamber. Murphy was a Buddhist. The only effort to try and distinguish these cases was a concurrence by Justice Kavanaugh, who suggested that Murphy filed a timely challenge and therefore implied Ray had not.

The problem was Ray had filed a federal civil rights complaint more than a week before his scheduled execution. Murphy filed a federal civil rights complaint two days before his scheduled execution. He had previously filed a motion in state court about two weeks before his execution date, and Murphy's lawyers in briefs had referred to the two cases, Ray's and Murphy's, as, quote, the same several times in their briefs. After this case, Texas changed its execution protocol to permit religious advisors into the chamber, but still does not allow them to touch their advisees or to audibly pray with them. This was also the first time that the new court chose to move a case from the shadow docket to the regular docket. The court later used the same move in the SB8 litigation. So here, the Supreme

Court stayed the execution and scheduled the case for argument and briefing on an expedited schedule, despite Sam Alito suggesting at Notre Dame, as I recall, that this was not possible. It's not possible in the context of SB 8. Can you think of a right that is treated differently? Correct me if I'm wrong, Leah. Are there other rights that are less favored? I feel I'm going to put my finger on something. I just can't quite know. Yeah, me either.

Anyway, the question in this case is whether Texas's policy violates ARLUPA, the Religious Land Use and Institutionalized Persons Act, or the First Amendment because it substantially burdens Ramirez's religious beliefs and is not the least restrictive means of furthering a compelling government interest. Notably, this case will be argued by friend of the pod, Judd with 2D Stone, the Texas Solicitor General. He, of course, was involved in litigating SB8 as well. Texas is arguing that Ramirez's claims are procedurally barred because he didn't first attempt to raise his claim through the prison administrative remedies process and therefore did not exhaust his administrative remedies as he is required to do

by the Prison Litigation Reform Act. And let me just presage and say that this case has all of the makings of a capital Lido with a C, not a K, and a peak Lido kind of intervention because this would be a great moment for him to find that there are procedural obstacles that prevent a victory for the defendant in this case. Indeed, and to bemoan how it is so unfair to allow people sentenced to die to ask for their spiritual advisors to be able to pray with them in their final moments. Frankly, I thought the United States amicus brief had a little of those vibes to it as well. They seem to agree with petitioner on the merits, that is to say this execution protocol violates our lupa, but they were unwilling to say that Ramirez definitely

exhausted the remedies as required to do so under the Prison Litigation Reform Act, and they suggest maybe there would be some reasons to deny injunctive relief other than the merits on remand below. Just also by way of looking for consistency in the court's cases, I wanted to note one passage from Texas's brief. In Texas's briefing, they describe Ramirez as playing, quote, ecclesiastical whack-a-mole. Hmm.

The reason I wanted to flag this passage is, of course, the Supreme Court has said that the state's unfair and dismissive generalizations of religion can mean the state has exhibited unconstitutional animus and a lack of neutrality toward religion. So a masterpiece cake shop versus Colorado Civil Rights Commission, the Supreme Court zeroed in on two stray remarks by one commissioner to say those remarks that unfairly, you know, were prejudicial against religion, invalidated the entire proceedings. And I just wonder whether

the court is going to be equally troubled by the state of Texas basically poo-pooing Ramirez's religious beliefs. Well, I don't know, Leah. I mean, ecclesiastical whack-a-mole, is that better or worse than simply asserting that religion has been used to justify a range of different atrocities in the past, which is actually empirically true and provable. So that's animus, Melissa, or so I am told. That is, I know.

I did just want to flag that. But second- That's why I would never say it. Exactly, exactly. But second, whack-a-mole is a very fun game. So really, when you think about it, you know basically likening it to Hungry Hungry Hippo and everyone's favorite childhood game. So it doesn't seem like animus to me.

You just keep popping up with these religious excuses and someone has to keep batting them down. But that's not animus, Leah. That's a game. That's exactly. That's a game. Exactly. That's what you would play at the arcade.

Well, Milton Bradley is going to come up with this, like SCOTUS version, Ecclesiastical Whack-A-Mole. It's going to be all over the country by the holidays. A fun secular game about religion. A fun, animus-free, secular game. I think we're probably not going to add that to our merch line, ladies. Probably not. Oh, an ecclesiastical whack-a-mole shirt is actually wired.

All right, we'll think about it. We'll think about it. All right. Maybe we'll leave it there for this episode. So that's all for today. Thank you so much to our producer, Melody Rowell, to Eddie Cooper for our music. If you'd like to support our GLOW campaign and our podcast more broadly, go to www.glowfm.com. And please go check out our merch collection. It was totally depleted because we have been on fire.

Leah, I should say, has been on fire with so much good new merch. And it was all sold out. And it is, I think, now all back in stock. It is. So go to our website, strictscrutinypodcast.com, click on the merchandise tab, and we really have a ton of good and many new shirts, mugs, a Kagan collection,

possible future ecclesiastical whack-a-mole, you know. There will be a holiday collection. I don't think it will include ecclesiastical whack-a-mole. Secular ecclesiastical whack-a-mole. Secular animus-free ecclesiastical whack-a-mole. Secular ecclesiastical whack-a-mole. Secular animus free ecclesiastical whack-a-mole. Right. This is the kind of shirt that requires quite a bit of explanation. Maybe a bit much.

It's going to be a lot to explain to your family. It'll be fine. Merry Christmas, everyone. All right. We'll see you next time.