Strict Scrutiny - Barking Goldfish

Episode Date: April 26, 2021

Kate, Leah, and Melissa go over new opinion, recap the previous week of oral arguments, and preview the next batch of cases to be heard at the Supreme Court. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Littman. And I'm Melissa Murray. And I'm Kate Shaw. And today we've got some news, including a very big opinion. We have some brief notes

on arguments from this past week and some previews into next week's sitting. So starting with breaking news, to flag the hearing list for this sitting, which is something that we didn't flag in our last episode because it came out after we recorded our episode with the Appellate Project. So there are 30 advocates arguing in total and seven are women. So still abysmally small numbers, but actually slow but steady improvement over the course of the last couple of sittings. I think we have to give cheers for that. I was about to say like a big part of the improvement is the fact that we now have an acting Solicitor General who is a woman.

And hopefully we will have a permanent Solicitor General who is a woman very soon as well. Perhaps the same woman. Perhaps the same person. Yes. Hint, hint. Wink, wink. Nudge, nudge. Slow but steady progress.

Also in breaking news, the Supreme Court released three opinions this week in Carr v. Saul, AMG Capital Management v. FTC, and Jones v. Mississippi. Carl v. Saul was written by Justice Sotomayor, and it held that litigants could raise challenges to the constitutionality of the appointments process for Social Security Administration administrative law judges, even if those concerns had not been raised before the agency itself. The opinion was unanimous, though different justices joined different parts of the opinion, giving different reasons for why there was not an exhaustion requirement here. The second opinion we got was an AMG Capital Management versus FTC written by Justice Breyer. So that

opinion held that the Federal Trade Commission doesn't have the authority to seek restitution and other forms of equitable relief under Section 13B of the FTC Act. This decision was also unanimous. We talked about this case and this issue previously. And I think this holding will pretty clearly and pretty dramatically limit the FTC's ability to remedy privacy and other kinds of consumer rights violations. Then there was Jones v. Mississippi. This is the case about juvenile sentences for life without parole. By way of background, in Miller v. Alabama, the court had invalidated Alabama's sentencing scheme that imposed mandatory terms of life without parole on juveniles who were convicted of homicide offenses,

and the court explained that life without parole was appropriate only for the rarest of juvenile offenders given their transient immaturity. Then, equally importantly, Montgomery v. Louisiana held that the rule in Miller was retroactive and applied to cases that had already become final because the rule was substantive in that it prohibited the imposition of life without parole on juveniles who were not permanently incorrigible. And the question in this case is basically, what kind of sentencing system can states set up that would comply with Miller and Montgomery? The defendant had argued that there had to be either an explicit finding or some discussion on the sentencing record that is trained at determining whether a juvenile is permanently incorrigible. The state had argued that discretionary sentencing record that is trained at determining whether a juvenile is permanently incorrigible.

The state had argued that discretionary sentencing schemes under which a state has the option of imposing life without parole or some other sentence and under which sentencers were permitted to consider an offender's youth were sufficient to remedy a Miller or Montgomery violation. And the court agreed with the state. Some notable portions and passages of different opinions in Jones versus Mississippi. So first out of the gate, let's talk about Justice Sotomayor's dissent here, where she underscored that the majority was bringing some big stare decisis is for suckers energy. She noted that this court's respect for stare decisis has sunk low. Not long ago, that doctrine was recognized as a pillar of the rule of law, critical to keep the scale of justice

even and steady and not liable to waver with every new judge's opinion. And notably, she cited to the person who had written the majority opinion in Jones v. Mississippi and had offered this peon to stare decisis in an earlier case, Ramos, and that, of course, was Justice Kavanaugh. And her dissent was basically a greatest hit of Justice Kavanaugh weighing in on the importance of Stare Decisis. And, you know, she kind of let him have it with his own words. If you hear any squeaking in the background, that is cold,

the bish poo squeaking. When I read this dissent, which I was extremely one of the more powerful dissents that has come from the court recently. Yeah, I think we're definitely passed respectfully for now. Definitely. And just in case you missed the big stare decisis as for Sucker's energy in the majority opinion, Justice Thomas highlighted it in footnote two of his concurrence in which he mentioned abortion, which was not an issue. Specifically, he suggested that the dissent was super concerned for what he called juvenile murderers and their status as children, but could not muster the same energy for the unborn.

He concluded the footnote by noting that it is curious how the court's view of maturity of minors ebbs and flows depending on the issue. And again, I think we are going to be seeing more and more of Justice Thomas weighing in, bringing abortion in perhaps where it's not even on the table. But again, very big stare decisis is for Sucker's energy and reminiscent of his concurrence in Gamble and also his concurrence in Blocks versus Planned Parenthood. One other thing about the Thomas concurrence in Gamble and also his concurrence in Blocks versus Planned Parenthood. One other thing about the Thomas concurrence specifically, obviously, the majority and the dissent went back and forth on whether they were being faithful to the court's prior decisions in

Miller as well as Montgomery, with both sides kind of pointing to statements in the opinion. And Justice Thomas, even though he agreed with the majority's bottom line in that Mississippi's sentencing scheme complied with the Eighth Amendment, appeared to agree with the dissent that the majority's reading of Miller and Montgomery just wasn't tenable. So he said, you know, but in reaching this result, the majority adopts a strained reading of Montgomery versus Louisiana instead of outright admitting, you know, that it's irreconcilable with the court's previous decision in Miller. And so he said he would have overruled Montgomery. And while he didn't say he would overrule

Miller, you know, his objection to Montgomery is that it's rooted in, you know, this body of Eighth Amendment doctrine, you know, with which Miller is as well. So, you know, he agreed that the majority's reading of those decisions, particularly Montgomery, was super strained, but he still would have upheld the Mississippi sentencing scheme. Another part of Justice Sotomayor's opinion that we wanted to highlight is she drew attention to who will bear the consequences of this decision. You know, there are currently around 1,500 people in the United States who were sentenced to life without parole for crimes committed as juveniles, And this decision allows that practice to continue. And of course, you know, the United States practice of sentencing juveniles to life without parole is really an aberration,

you know, vis-a-vis other countries. And Justice Sotomayor said that by giving censors discretion, by saying discretionary sentencing schemes are perfectly valid, the majority's decision might actually worsen the disparities. So she noted that 70% of all youths who are sentenced to life without parole are children of color, and actually that the trend has worsened since the court's decision in Miller. Alabama, which invalidated mandatory life without parole schemes before Miller, 61% of children who were sentenced to life without parole were Black children, whereas after Miller, 72% of children sentenced to life without parole were Black children. She also highlighted how Brett Jones and other people who have been sentenced to life without

parole have been rehabilitated and have rehabilitated themselves despite, you know, the censor's determination that they, you know, needed to be imprisoned for life and die in prison. And she also wrote in this extremely powerful passage about how their actions to rehabilitate themselves still matter, notwithstanding what the court has said. All right. There's a lot of bad stuff in this opinion that we should highlight as well. So one thing to note is that Miller and really Montgomery had pushed states to change sentencing policies and procedures regarding life without parole for juveniles. So 10 years ago, only 10 states banned juvenile life without parole. Now at least 31 states ban the practice or have no juvenile serving on life without parole. Now at least 31 states ban the practice or have

no juvenile serving on life without parole sentences. As the different opinions note, Pennsylvania's resentencing, which has adopted the procedures that the court had said aren't required, has resulted in many fewer individuals being sentenced to life without parole. So this sort of sets up the problem by which, you know, some have referred to it as justice by geography. The sentences that people will get will really depend on the jurisdiction in which the crime occurs and in which they are sentenced. So there will be wildly disparate outcomes depending on jurisdiction. Right. But of course, you know, to spin it in a potentially positive light, not the opinion, but, you know, the possibilities of, you know, different paths forward or paths to relief for individuals in this category. So remember, this case is the case the court heard because Lee Malvo's case was originally presenting the same question, but Virginia then changed its scheme to automatically allow juvenile defendants sentenced to life to get a parole hearing,

or at least to become eligible for parole after 20 years. And so he no longer presented the same question. So Virginia and a number of other states have changed their schemes of sentencing individuals who commit their crimes as juveniles. And obviously, nothing in this opinion prevents states from adopting those kinds of procedures or for banning any kind of life without parole for juveniles altogether. This is something that I know that, Leah, you reminded everyone that we talked about, I think, last summer with Josie Duffy Rice. The action is going to shift to the states in terms of how they address this issue of sentences and either eliminating or dramatically restricting

the possibility of life without parole for people who commit their crimes as children. The court also did not, like very much did not, overturn Miller or Montgomery, at least explicitly and facially, right? It affirmed that judges have to have the opportunity to consider youth before imposing sentences. The opinion didn't change that this idea of permanent incorrigibility is the substantive constitutional standard, right? The Eighth Amendment still prohibits the imposition of life without parole on juveniles who are not found to be permanently incorrigible. So certainly it seems like as applied challenges to particular sentences, remain available under these opinions. So that I think, you know, maybe is some very small silver lining for advocates who are working

on this issue. I mean, to my mind, I mean, I had a couple of sort of tactical questions. One is I totally agree, Leah, that Sotomayor's dissent was incredibly powerful. I wondered tactically about the decision to characterize what the majority is doing as effectively gutting, as she says, Miller and Montgomery. Because of course, if you're going to continue to argue that those opinions have teeth, is there a chance that the Sotomayor language gives, you know, some cover to lower courts that want not to read in their fullest possible way, Miller Montgomery, maybe. I do think when you are thinking about how to dissent, there's the kind of minimize what the majority has done strategy of dissent, which I think maybe Kagan more often does. And there's the like, I'm furious and I'm going to call the majority out. And that I think the latter very

much characterizes what Sotomayor is doing here. So it made me think two things. Like one, I mean, is there some reflection in this dissent of what else is coming down the pike in terms of what the court is going to do? Because she is just like, there's just a lot of rage in that writing that I felt like certainly justified, I think, on just the kind of facts and like treatment of law in this case, standing alone, but maybe reflected some other dynamics inside the court. You know, whether continuing to sort of call the court out on its excesses is something that, for purposes of broader public debate about the Supreme Court and structural reform questions, is something that could have some utility. It just made me think about the decision to go as hard as she did, kind of in light of those dynamics. I don't

know if you guys have any thoughts about it. I definitely think that she's not leaving any wiggle room, like in sort of characterizing it as the most excessive thing that the court could have done. I think her goal is to engage the public in this debate, to get the public thinking about the court exceeding its charge. And I also think it's not just about this particular case, but, you know, also about June Medical Services, where the court effectively gutted Whole Women's Health with that loan concurrence from the Chief Justice without ever saying, and now I'm gutting Whole Women's Health. And, you know, he didn't have to say it because all of these lower federal courts have essentially assumed that that's what's happened and have applied it in that way. And so,

you know, I think part of it is, you know, maybe it's not particularly strategic, but I think it is very clear eyed about what the landscape looks like. And for a 6-3 super majority, like they don't have to be restrained. And there's no point in her trying to strategize with them because they don't have the votes. Yeah. Which approach you pick will depend a little bit on whether you think the lower federal courts would adopt a narrower interpretation of the majority opinion if Justice Sotomayor didn't write that dissent. I think given the composition of particularly the Court of Appeals right now, that's not particularly likely. And also whether you think this court, the Supreme Court, would adopt a narrower interpretation of Jones in a subsequent case

if she held back, that also I don't think is particularly plausible. And so then I do think she is doing a public service because we saw the fallout, you know, last term and in previous terms from what happens when you get people like Justice Kagan or Justice Breyer concurring in the judgment in Little Sisters of the Poor versus Pennsylvania or Our Lady of Guadalupe. You have people saying, well, this Supreme Court isn't so revolutionary. They're not doing any of these significant things. You know, they are writing opinions in which, you know, Democratic appointees are joining, or you saw this in the wake of June Medical, where you get a lot of commentators saying, well, actually, like, you know, the Chief Justice didn't overrule women's health. Actually, the standard might be more protective of abortion rights. And so I just think that

there is enough good reason to write dissents like this that are, as Melissa was saying, like very clear eyed about what is happening, given the extent of public conversations about federal courts, the Supreme Court that are happening right now. narrative in the way people talk about the justices and how they work with each other, where, you know, I think Justice Kagan is framed as incredibly canny and tactical and strategic, and Justice Sotomayor is emotional and visceral in the way she writes. And, you know, I don't know if people mean to do it in that way, but I do think it plays into sort of weird racial and gender stereotypes that I think we just ought to interrogate. I mean, I think for her, Justice Sotomayor, it is worth being emotional. You know, she, I think, very much understands herself to be reflecting a particular point of view on the court that otherwise would go unrepresented. And this is a big deal for communities of color. Like,

as she says in the opinion, the children of color are going to be the ones who are disproportionately impacted by this. And, you know, she could strategize, but it's pointless. And instead, her best shot lies in getting the public galvanized around this. And I think that is an incredibly strategic thing to have done. So the audience being like a future, a future court, not this court in five years, but a court sometime down the road in the public broadly. I think that's probably right. Those are the audiences that she's talking to. And it's also not like she's saying these things to the exclusion of noting how the majority is making nonsense of what Montgomery said, right? So like

she has, you know, she's worked all through the doctrine and said like, okay, you seize on this one line, but that literally makes no sense given our entire corpus of retroactivity. Jurisprudence with Justice Kavanaugh has this extremely confusing footnote about that just like can't really explain Montgomery. And so, you know, she's kind of doing everything she can. And I think that's kind of the right approach here. But one of the things I was going to note was so Roberts, you know, is in the majority in Montgomery, and then of course joins the majority here. And I just wondered whether he did that in order to control the assignment so that Thomas wouldn't. He gave it to Kavanaugh, and presumably that's, you know, a choice that I presume Thomas would have kept the opinion for himself and tried to get a majority to overrule

Mueller and Montgomery if he'd had it. That's interesting. Yeah, I mean, maybe. Like, I mean, again, I think we've talked about this before. His authority, not necessarily a sort of symbolic authority, but just his strategic authority in negotiating these things within the court has been diminished with the advent of a sixth conservative justice. So, you know, maybe this is one of those times where he does get to, I think, wield a little sort of strategic power in this. That's a good point. We should move on, though, to some other important cases. Let's do some recaps of arguments. Some of the cases were ones that we previewed last week. So the court heard arguments in a number of cases, Sanchez versus Mayorkas, Yellen versus Confederated

Tribes of the Chehalis Reservation, and Greer and Geary. So Kate, do you want to kick us off with Yellen? Sure. Well, actually, I just wanted to note something, sort of a procedural wrinkle in that case. So there's a story that came out about the selection of advocates to actually argue in Yellen right after we recorded our episode with the Appellate Project. So remember, this is the case about whether Alaska Native Corporations or ANCs formed under the Alaska Native Claim Settlement Act are eligible for funds that may be given to Indian tribes under the CARES Act. So in that case, there were two sets of briefs on behalf of the tribes, so opposing the disbursement of these funds to the ANCs. One brief, which we highlighted, represented 16 tribes. The other brief, which I had actually

just failed to notice before we previewed the case, represented a single tribe, the Ute tribe. So the Ute tribe actually filed a motion requesting divided arguments so that they could argue in addition to the lawyer for the 16 other tribes. The court denied that motion. Usually in those circumstances, counsel just works out who will argue. But at least according to Marsha Coyle's reporting, the Ute tribe's position was that they would not consent to the other lawyer arguing. So in those circumstances, what does the court do? As Marsha Coyle reported, the court literally draws a name out of a hat to decide who argues the case. And here- So fancy. Right. They don't even bother doing like an automated spreadsheet

like you do for Instagram giveaways. Just a hat. In some states, right, like literally if there's a tie in certain, right, in the Virginia legislative election, like two or four years ago, maybe they literally tossed a coin when there was an actual tie. So like weirdly, this stuff does happen. So here, because the one lawyer represented 16 respondents and the lawyer for the Ute tribe represented one, there was like a 16 out of 17 chance that they'd draw the name of the lawyer for the consolidated brief. But they drew the name of the lawyer for the Ute tribe. And so that's who argued the case. I should say as a disclosure that I know or at least have met the lawyer for the other 16 tribes, Riaaz Kanji. Our listeners might know him as the lawyer who argued on behalf of the tribes

and won in McGirt versus Oklahoma, a major, hugely significant federal Indian law case. And that is who the tribes could have had arguing the case. But that is not what happened. And I think the argument was much poorer for it. You know, you all talked last week with Professor Matthew Fletcher about how this is, I think, a hard case. And it's hard because I think assessing the implications of the case requires an understanding of Indian law and how contracts and decision making authority are allocated under or as a result of the Indian Self-Determination Act, the statute incorporated into the CARES Act. And here the justices seem to be thinking about the consequences for the CARES Act alone. That is, what if you don't give money to ANCs? And just thinking about

the case in those terms is a mistake because the case will also determine whether ANCs would be given decision-making authority and veto power over contracts as a result of being recognized as tribes for purposes of ISDA. And that could be really huge, since if they are recognized as tribes, you could have multiple and potentially conflicting veto authority in separate organizations within Alaska between the ANCs and the federally recognized tribes. It's also hard because it involves a lot of complex interlocking statutes and competing canons. You know, would reading ANCs out of ISDA render it superfluous? Depends on your reading about whether Congress thought ANCs might qualify for recognition. Also, you know, depends a little bit on your understanding about what ANCs are and what

recognition is supposed to serve. And the argument was just a disaster. Justice Sotomayor told the lawyer for the Ute tribe that it was going around in a circle. At one point, the advocate conceded he was, quote, having trouble communicating the dilemma that would be created under the government's determination. Justice Barrett said the case was about only what piece of the pie goes where. And so this, to me, just not great. And I'm not sure how the court's procedures or practices regarding divided argument help or hurt this. If they always grant divided argument or don't consolidate cases, maybe you don't have an

incentive to agree to someone else arguing the case. On the other hand, this doesn't seem great either, since it effectively gave a holdout considerable power to like potentially torpedo a case in the process. So Leah, I totally get the point here that he really did not come out guns blazing in the best way on this one. But it's my understanding that this might have been his first outing before the court. And we have been talking about giving people opportunities to argue this, but maybe I think what you're saying here is that in a situation like this where the majority's interests, 16 of the 17 tribes are represented by one person that perhaps allowing this single person to represent everyone's interest is a little more problematic. But

generally, we are in favor of diversifying the core of those who argue before the core. Absolutely. There was a separately weird moment at oral argument that involved the hypothetical drawn from Paul Clement's brief. And so we'll just play that clip here. But you do agree that they have that authority. Congress has the authority to recognize them. In other words, this goldfish can bark. Do with that what you may.

But can this goldfish walk on a leash? That's what I want to know. Anyway. Is the goldfish potty trained? Another case that was argued last week is that set of cases involving so-called Rehaef errors, Gary and Greer. So the question here was whether a federal defendant who has been convicted under the Armed Career Criminals Act, also known as ACCA, whether they have to show that they knew they had a prior felony conviction that made it unlawful for them to possess a firearm. And if that is the case, how does that get calculated in terms of retrial or resentencing when the government hasn't actually submitted proof of this at trial? So the government argued't actually submitted proof of this at trial.

So the government argued for the position that appellate courts can consider evidence outside of the trial record in order to conclude that a federal defendant knew that they had a qualifying felony conviction. And in this case, the evidence outside of the trial record was in the larger district court record, namely in the sentencing report, the pre-sentencing report. Leah, I think you're hoping that the court won't go any further than this. That is that they won't say that any or all evidence outside the trial record can be considered, but sort of limit it to just the pre-sentencing report. Is that right? Yeah, because I just think it would be really difficult for courts to be asking, well, could this evidence that's outside the trial record and never was admitted be admitted in some admissible form such that's outside the trial record and never was admitted

be admitted in some admissible form such that the government could have proven that the individual knew they had a qualifying felony conviction? Some more personal grievances from arguments. So case involves ACCA and resentencing. And I really took it personally that it seemed like a core quantum of the justices, just we're not interested in the case at all. So here's the end of the federal government's argument. Thank you, Mr. Ellis. Justice Gorsuch? You have no questions at this time. Justice Kavanaugh? Additional questions. Justice Barrett? None for me either. A minute to wrap up, Mr. Ellis? Look, I just think if you're not interested in armed career criminal law cases, you don't have a ton of business and maybe no business at all serving on the federal courts, like given the

significant percentage of the docket on federal courts that are like ACCA and federal criminal law cases. But, you know, maybe that's just me. I'm just thinking of that Michael Jordan meme. And I took that personally. I take all of this personally. My partner actually got me to watch the Michael Jordan documentary. Oh, it was so good. By telling me that, like, I would, quote, relate to a lot of Michael Jordan's personality and he was

right he was right speaking of uh bad things at arguments um this seems to be our trend in the argument recaps uh court heard Sanchez versus Mayorkas um also did not seem to be that the case was going great for the petitioner, the applicant for lawful permanent resident status. It appears that the temporary protected status holders are going to lose, and they also seem maybe likely to lose in a way that would prevent the Biden administration from changing positions. So the courts seem inclined to say that the statute unambiguously does not include TPS recipients as being admitted for purposes of applying for lawful permanent resident status. If the court were instead to

say that the statute is ambiguous about whether they are admitted, but that the government's position that they are not admitted is reasonable, then the government could adopt a new or different interpretation saying TPS recipients are admitted and can apply for lawful permanent residence status. But that won't be possible if the court says the statute unambiguously treats them as unadmitted. Now, I say it doesn't look like the case is going to go well for the applicant. The lawyer arguing for the applicant, Amy Mason Zaharia, did great. And so that's not at all a reflection on her. It's just this court. And one comment on your prediction, Leah, which I think is sound, is that it would, or at least if there's a real possibility, it would be incredibly aggressive for the

court to hold that this is what the statute unambiguously says, in particular because the federal government is not only not asking for it, but sort of disclaiming any interest in having the court find that. Several times in the Chief Justice's colloquy with the federal government's lawyer, the federal government's lawyer said, no, we don't think you have to say what it means unambiguously, right? All we're asking you to say is this reading is reasonable, which I wish they weren't arguing at all, but they are certainly not arguing for the court to bind their hands in terms of future discretion. So it would be

the court giving the federal government significantly more than it is requesting for it to hold on those grounds. So I hope that general considerations of judicial modesty will, you know, play in the justice's decision about how if these, you know, TPS holders are going to lose, they do lose. Okay. Yeah. I mean, it's just like, you know, the like humanitarian considerations and concerns of the case were just like entirely absent from the argument. And so I just don't know that like, that suggest that judicial modesty just looks really different. Yeah. I mean, like, again, Brett Kavanaugh came down really hard for the proposition that, like, anything you do as a minor can be, you know, held against you permanently. So.

All right. Let's go to previews. OK. So there's a number. Wait, can I make a confession before we go to previews? OK. I sometimes do moots for Supreme Court cases. I'm not going to say what case this is about or like which side, but I did a moot for a case.

And sometimes when you're preparing for a moot, you know, you like try to channel a particular justice. This wasn't one of those times. I was just like reading the briefs and like trying to prepare questions that I thought, you know, like this side's presentation arguably raised. So I did that. We did the moot. And then I went and checked the transcript for the argument. Guess which justice asked the question that I came up with? Was it Alito? It was. And I just like, I'm not, I'm not surprised. You know why? Alito asks really fucking good questions and so do you. So I'm actually not that surprised. I mean, it's the one thing we have to give him credit for and i just started swearing i just like but yeah i this

this really caused some reflection and i was like is the universe hurtling toward a world in which i am in a mind meld with sam alito is this some weird consequence of the pandemic 2021 like i just it's two things i think he's just a really good questioner. And so are you. And it also is you want to ask the meanest, worst version of a Supreme Court question to prepare the advocate. And that also is going to be the place that Alina goes to when he's thinking about questions. But that's really funny. It was like verbatim? Yeah, like it was the question. And I just, I felt the need to confess this again. Like it made me feel strange. I like it.

On to previews. I'm just going to leave that where it is, Leah. Kate, there are some big cases coming up in the next sitting. So do you want to kick us off with Americans for Prosperity? OK, so let's do that. And we have talked about this case a couple of times, including with Senator Whitehouse. So we'll be relatively brief. But basically, this is the case involving the California donor disclosure requirement. So at issue is the constitutionality of California's requirement that tax-exempt charities that solicit within the state submit a copy of the Schedule B form that they file annually with the IRS anyway to the state government. So in a way, even though

I just described this as a disclosure case, it's really kind of a reporting case, right? So these are about confidential submissions to the state government, not disclosures to the public. So several charities, including the Koch Brothers Americans for Prosperity Foundation, have challenged this requirement, arguing that it violates the First Amendment freedom of association. The argument is basically that if donors to these organizations can't remain anonymous, that will inhibit their ability to associate with and donate to the organizations because they will fear harassment and reprisal. So we noted some amicus asymmetry at the cert stage. We had waited to see if that would balance out at the merits stage, and the answer is not so much. So there were around 43 amicus briefs filed in support of Americans for Prosperity. A lot of folks you would expect,

Cato and Beckett and Judicial Watch and ALEC, the American Legislative Exchange Council and the Chamber of Commerce. but actually a few parties that I was surprised to see also on that side of the case. So CARE, the Council on American Islamic Relations, the Electronic Frontier Foundation, and the ACLU and the NAACP LDF. So our former guest and real icon, Sherrilyn Ifill, is on the brief on the side of Americans for Prosperity. So it's got some interesting kind of ideologically cross-cutting support. Basically, the ACLU and LDF take the position that the right to associate for expressive purposes is a core First Amendment right. I think that's clearly true. But also they take the position that I don't think I'm willing

to go with them to, that a right to confidentiality in those associations must exist absent compelling reasons. And that California, largely because it inadvertently disclosed some of these forms historically, hasn't shown sufficiently compelling reasons. Okay, wait, so time out. I was a California state employee for a long time. And I just think it's just a massive bureaucracy. So it was not unusual to get like emails like, hey, California pension holder, your social security number has been disclosed to the broader public. So, you know, is that a reason to sort of completely put the kibosh on reporting requirements? I don't know. Because it's a big bureaucracy. Yeah, you know, and I mean, some of these disclosures were, so there was a trial.

And yes, like definitely some of these forms were inadvertently posted. But then also there was an expert who basically was able to, by typing in different URL combinations, get access to these records that were, you know, non-public but accessible if you found the right address. But there was no evidence that anybody in the public, aside from this person who was explicitly trying to get access to these forms, did so. But look, California concedes it was not using top-of-the-line security protocols, which it says it has now fixed. But yeah, kind of can the constitutional question turn on those disclosures historically? It seems crazy that it would. And in some ways, Americans for Prosperity is sort of sliding between whether it's making a facial or as-applied challenge and sort of how significant these inadvertent disclosures really are. So I do think, I mean, I'm going to make a prediction now,

since we're talking about Sam Alito, that he is definitely going to ask about Sherilyn's brief, like definitely going to want to talk about it. That's like peak Trollito. This has woke Alito just saying. No, I think it's Trollito. Okay. It could be either one, I suppose. Yeah, I think it depends how he frames the question, right? If the question is like, I, Sam Alito, am really concerned about the NAACP LDF's ability to maintain their associational rights, then it would be Wokelito, right? I don't know.

I don't know. Is that Wokelito, Trollito, right? These things blur together. be Woke Lido, right? I don't know. I don't know. Is that Woke Lido, Trillido, right? These things blur together. So I do think that California's lawyer is going to have her work cut out for her. So this is Amy Feinberg, who is one of the deputy solicitor generals in California, who is making her first argument before the court. I think we should give props to the California solicitor general, Mike Mongan, who is, full disclosure, a friend of mine, but he is not hogging all of the really good arguments this term. So she, I think, is the second person in

that office who is doing her first argument this term. He's already done a couple. Others are getting the opportunity to do those too. But I think it's going to be a tricky argument, I think, because of this kind of messy historical record. And I think there's going to be probably a lot of discussion of those facts. And then there are also these like really broad questions that we have talked about, about whether the court might actually kind of ratchet up the constitutional scrutiny that it has typically brought some kind of intermediate scrutiny when evaluating these compelled disclosure requirements or even these kinds of reporting requirements. There are definitely some amici who are seeking a real strict scrutiny. I don't really view, I think Americans for Prosperity is asking for some kind of very exacting intermediate scrutiny,

something at the high end of intermediate scrutiny, which it seems to view as not sort of a U.S. standard. An exceedingly persuasive justification. Right. So maybe they're seeking some new, yeah, something along those lines. Overwhelming need is like a formulation that they use in the brief for the evidence. And look, California says we're trying to deter fraud and make sure that charities are actually doing what they are telling their donors they are doing. These are real and serious interests. And in genuine intermediate scrutiny land, seeking confidential reports that help them serve that interest seems obviously to satisfy that kind of scrutiny. And yet I think it's very possible that the court will say that something

more is required that could have implications for the IRS's ability to regulate nonprofits, for the whole world of political information disclosure that we've talked about previously. So I think that this case is both really messy on some of the facts and detail and potentially hugely consequential. And so I just, I don't really know what to expect, but I think it'll be a big and important argument. Yeah. And speaking of amicus participation, the federal government is arguing as amicus in the case. They are arguing for vacatur after initially supporting the cert petition filed by Americans for Prosperity. The federal government rejects the idea that strict scrutiny should apply. And they especially reject the idea that the government showed that reporting is the least restrictive alternative. But they also say that the California requirement is different from the

federal requirement to disclose the same information since the federal requirement isn't a requirement so much as a condition on a federal subsidy, i.e. a tax exemption. And it suggests that remand is required to address as applied challenges, that is that California law isn't invalid on its face or in its entirety, but instead they need to consider whether particular donors might face particular fears of reprisal. There's also some very big whiteboard energy in the amicus core. Sheldon Whiteboard Whitehouse, former guest at Strict Scrutiny, along with his colleagues Leahy, Durbin, Klobuchar, Merkley, Coons, Blumenthal,

Hirono, Booker, Warren, Van Hollen, and Duckworth, have all weighed in in an amicus brief that goes on about the dangers of dark money. And related to that, Senator Whitehouse, along with Senator Blumenthal of Connecticut, have also filed a letter urging that Justice Amy Coney Barrett recuse herself in this particular case because Americans for Prosperity, a sister organization to the Americans for Prosperity Foundation, which is the litigant here, gave at least $1 million to fund a national campaign in support of her confirmation. And now this case is before court that includes her. So the letter cites to the Supreme Court's opinion in Caberton v. Massey, which held that the Constitution's due process requirement required a West Virginia state Supreme Court justice to

recuse himself from a case involving a jury award against a coal company CEO because the CEO had spent $3 million to secure the election for that justice. SCOTUS said that the situation presented a serious risk of actual bias, and that decision was a 5-4 decision written by Justice Kennedy. Yeah, so super interesting letter. I think important letter in part because it highlights, Kate, something you've talked about on this issue, which is the dividing line between charitable organizations and actual political disclosure requirements is actually pretty thin when you start digging into the details as the relationship between Americans for Prosperity Foundation and Americans for Prosperity kind of illustrates on this case. We mentioned that there are only a few amicus briefs

coming in on California's case, but the briefs that did come in, I think, were quite effective. So you had a brief from legal historians, which gave what I would have thought would be unnecessary historical context to NAACP versus Alabama, the case in which the court said Alabama couldn't disclose or required public disclosure of membership in the NAACP because of the pervasive private and public violence against Black Americans. Second is Campaign Legal Center, which really talks about how this issue is related to campaign finance reform. And then the state's amicus brief and the nonprofit scholar's amicus brief, I thought were really great at talking about the practical difficulties of saying well subpoena power would be a sufficient substitute for this reporting requirement um they

noted that the california attorney general supervisors over a hundred thousand charities with like a dozen full-time attorneys doing this and they also give specific examples about how donor oversight allowed california to specifically detect, given that a bunch of organizations that had presented themselves and advertised themselves as credit counseling charitable entities were in fact funded by creditors. And that kind of gave the California Attorney General a clue that maybe this organization wasn't doing exactly what they said they were for the reasons they said they were doing it. And that turned out to be correct. And there are other examples of that phenomenon as well. All right. Let's get into the final case, the one that I've been waiting for from the upcoming sitting. And that

is Mahanoy Area School District versus BL, otherwise known as the Salty Cheerleader case. This is a case that is about a First Amendment challenge to a school's decision to sanction a student for a Snapchat that read, quote unquote, fuck cheer when she unsuccessfully auditioned for the varsity cheerleading squad. I have little people around right now. Technically, the cheerleader was not being particularly restrained. She had a field full of Fs and she was not afraid to use them. So in addition to fuck cheer, she also wanted to fuck school, fuck softball, fuck cheer, fuck everything. And the cheerleading coaches suspended her for an entire year. The case raises questions about the scope of First Amendment protections for student communications that don't occur at school. And there are a bevy of prior

Supreme Court cases that are potentially relevant here, including Tinker v. Des Moines, the canonical case which said schools can discipline students for speech at school that leads to or might lead to a quote-unquote substantial disruption, even if the disruption is caused because some people object to the content or viewpoint of the speech. Also implicated here are Bethel School District number 43 versus Frazier, Hazelwood School District versus Kohlmeyer, Morse versus Frederick, which is the famous bong hits for Jesus case. And let me just say, if you don't know about these cases, would like to know more about these cases, Justin Driver, who's a Yale law professor, has a book called The Schoolhouse Gate, which discusses all of these cases and is a terrific apply for student speech that happens outside of school or a classroom setting, but in a universe where it's kind of hard to separate them, right? Since given online media, stuff that happens outside of school affects what happens in school, can be seen in school, etc.

So basically, one way to think about it is whether the Tinker test applies, whether instead schools just can't sanction students for speech outside of school, but sort of what the boundaries of that line or what the limit would be. So I don't know what you all think, but this is, it's a hard case. For me, you know, on one hand, it seems straightforward that there should be greater First Amendment protections that students enjoy outside of the classroom when classroom control and whatnot aren't implicated. But it also doesn't seem right that there can't be any, you know, First Amendment protections or that schools have no interest in regulating what happens outside of the classroom. So here's a hypothetical, like not too far from the real world, like imagine a professor or a teacher who speaks publicly, you know, in ways that are quite dismissive of the intellect of, you know, students of color,

I don't think the school is powerless to do nothing about that professor's speech, even though it's not happening in the classroom, it's happening outside of it because what people do and say outside of the classroom can have potentially powerful effects on students' experience in the classroom. And the same is probably the case for student speech. Like what if students are engaged in horrible discrimination or harassment on the basis of sex or race outside the classroom? I think the school could do something. But also given the frequency with which people use social media, this could make basically everything students say or do outside of the school, which is often captured on social media subject to school discipline. You know, the ACLU brief tries to address this as follows by saying schools can punish off-campus student speech that threatens the security of the school or its members by looking at the true threats doctrine. But again, it just seems to me that that doesn't really capture all of the set of circumstances in which behavior outside of school would really have like

a substantial and like deleterious effect on school itself. I don't know. Yeah, I have to confess, I haven't gone through all the amicus briefs in the case. So I'm not sure if anybody proposes this distinction. But it seems to me that just some kind of third party harm principle might distinguish the kinds of cases that you're worried about, where the speech might actually impose a tangible harm short of a true threat, but real harm on the students who would be objects of that discriminatory, say, or hateful speech versus the kind of speech that, you know, I don't I don't really view like cheerleading as being harmed in the same way through this speech as the kind of harm that you're describing. So I can well see disallowing the punishment here, but allowing a punishment in the set of circumstances that you're talking about. I'd have to revisit. Stevens has a great dissent in the Morse versus Frederick, the bong hits for Jesus case. And there it's like, what the student is doing is like this, it seems like it's a very sort of hard to parse marijuana advocacy.

But like why Jesus is in there is never totally clear. Maybe the student, it seems like, was trying to like throw some kind of First Amendment clearly protected speech into the mix by invoking Jesus. Like I feel like I've always sort of assumed that was the case, but it might just be kind of gibberish. But either way, he sort of reads it as like, you know, advocating legalization. And Stevens like signals his sympathy for marijuana legalization, sort of compares our current drug war on like prohibition from when he was a boy. Like it's actually an amazing opinion. So I feel like I signed with him on that case. And in this case, too, I feel like the discipline is inappropriate.

But I don't think that means it would never be in the kinds of circumstances that you're envisioning, Leah. Well, can I say something about the third-party harm? I mean, I think that's an interesting way to draw a distinction here. I don't know that this is the court that necessarily would be receptive to that. I mean, if you look at Hobby Lobby, for example, where lots of people talked about the third-party harm to individuals, the court seemed to not have any Fs to give about that. Oh, yeah. I'm not saying that it's a winning argument, but I'm saying it'd be a principled place to draw. I just think it's unlikely in this case, particularly in the context of the First Amendment. In any event, we saw a really rare last minute substitution of counsel in this

case. It is now going to be argued by David Cole of the ACLU. And on the other side is Lisa Blatt. And again, are we going to have any bleeps on the audio for this? People whispering? I'm predicting no. They never do. They say like the F word or they maybe spell it out. I know it when I hear it. Okay, all fine. I mean, the advocates have to know that the justices don't particularly want people up there swearing at court arguments. On the other hand, right,

a lot of the line drawing examples and hypotheticals from the briefs like do involve swear words, right? And like, if you're interested in hypotheticals and like where the line is, it does seem like in this case, it would be part of it, but who knows? I love the idea of having to slap a warning label on like the audio files of the oral argument.

Big tipper gore energy. Okay. Let's move on to court culture. There was a lot happening in court culture this week, but probably the biggest story came from the fact that the newest justice, Amy Coney Barrett, got a book contract for $2 million. And this sparked a lot of debate on social media. What was the book going to be about? Some suggest that it's likely to be a kind of book about how judges do their judging. And some people argued that probably wasn't the time for her to write that book, given that she's only been on the court for about six months and had only been a federal judge for about three years before that. It doesn't seem like it's going to be a book about her life.

So that actually, I actually would be very interested to read about her life. I genuinely want to know, like, how do you have seven kids and a job and manage to balance it? Because I'm dying here and I, like, I don't have seven kids. So I would have been interested in that book. But again, lots of debate around this with people on all sides weighing in about this. There was also some other news from the court. So what was it, Leah? What did we see from the court this week? We got the first pictures from the court since Justice Barrett joined the band. So we got the group photo of the Supreme Court. They are all maskless. And some of the justices have some notable expressions. So can I just say, I posted this

on Twitter as the post-COVID court. And all these people on Twitter as you know, the post COVID court, and all these people were in my mentions, like post COVID, we're still in the middle of it. And it's like, understood, like still wearing a mask, like it's Twitter, like, calm down, like literally calm down. So again, proceed, Leah. So Justice Kagan looks like she's trying to tell us that Mississippi versus Jones was just an appetizer for what is to come. So I actually tagged myself on Twitter as Justice Kagan's inner sense of doom and dread in the photo. I just like the entire photo has a real vibe of like a failed family photo opportunity. The comparison between the heights. I mean, she looks like she's literally an elf among these giants in the picture. Because Kagan, we should say, is in the back row because they sit senior.

Everybody more junior is in the back. So it's her and then the Trump justices. Justice Breyer needs to retire so she can sit down because that just doesn't look right. It really doesn't. And Kagan does not look happy right there. Although we should say it's like two minutes of a lot of photos. The one that was, I think, initially released that that you tweeted, Melissa, was like especially terrible. I think there are a few others that I don't know which one is going to be the official one. But Kagan is a little bit smiling and a couple of others.

So if I like like why would they let those photos get out they're not good like the chief justice is looking to the right off to the right in another he's looking off to the left it's just it's a weird justice sotomayor is smiling and all of them and she's like i'm right with jesus i'm like, I'm good. She crushed, she crushed that photo shoot, right? Like you, you, you watching America's Next Top Model, Melissa, that paid off. Yeah. She knows how to do it. She's serving face, serving face. I will say, let me just say briefly, I'm worried now you're going to think I'm at one of the Twitter scolds, Melissa. So, so, so tell me if you think I am. I was a little not that psyched that they're all maskless only because, of course, they're all vaccinated.

And I presume everybody in the court and the photographer as well. But there is a signaling function. Like Biden is vaccinated. Harris is vaccinated. I was being ironic because the public relations office was like, they've all been vaxxed. That's why they're late. Oh, I see. Okay.

So you're with me. Like, I mean, I'm not sure that they need to be like, we're all just bare face now. And clearly, though, the chief was like, we're doing this. And I can well imagine the liberal justices, even if they're uncomfortable, not wanting some weird culture war court image with half of them masked. Justice Sotomayor in the shield she wore to Justice Ginsburg's funeral. Totally right. She had multiple masks and a shield over it, which is like how they all honestly should be still, I think, proceeding until we're all vaccinated, which we're not quite there yet. I don't, again, I don't want to be a scold about it, but I just, I wasn't crazy about them just being like, we don't have any role in like, you know, demonstrating that like for a little bit longer, most of us should still be wearing masks, even the vaccinated

ones with lots of other people around. It makes me wonder if they're masked at conference. I don't think so. I think this tells us no. Yeah, I think so. I think that's right. You know who looked like they didn't have a care in the world? Your boy.

Why was Dreyer so happy? I don't know. Do you have something you want to share, Steve? No. You look thrilled. No. He's like, I'm good. I got pot roast in the slow cooker at home. I'm good. All right, y'all. I think that's all we have time for today.

Thank you for joining us. We, of course, will be back with more court shenanigans. And as always, we are so grateful to our terrific producer, Melody Rowell, for all of her help getting us into your ear holes and making us sound good. And we are grateful to Eddie Cooper, who does our music. And of course, listeners, we are grateful for you. Thank you so much for supporting the pod. If you would like to be a more earnest supporter of the pod, you can feel free to do that by joining our GLOW campaign. And Leah, what's the URL for that? GLOW.fm slash strict scrutiny. Sam, if you can read my mind, bring up the NAACP LDF brief at argument. I'll know you're listening.

That's all we have for today. Bye, y'all.