Strict Scrutiny - Big Dog Energy

Episode Date: October 19, 2020

Leah, Melissa, and Kate discuss some of the highlights of the October sitting, as well as the conclusion of the Barrett confirmation hearings. Follow us on Instagram, Twitter, Threads, and Bluesky

And then to rise, cross the room, and embrace him with no masks in sight. She didn't really cross the room. They were seated next to each other. She physically moved her body. She had to get up and move. She did move. I mean, you did make it sound like it was a sort of chariot of fire. Like they ran and embraced, like she jumped into his arms.

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 Kate Shaw. I'm Leah Littman. I'm Melissa Murray. And we have a great show for you today. We're going to start off with first breaking news,

and then we are going to recap the October sitting, and we will finish off with some court culture. So Leah, can you get us started with all that's breaking at one first street? Well, I'll start us off with some of it. So we have some news related to the court's docket to cover, cases added to the docket, matters that might be added to the docket soon, and some very strong enforcing the Voting Rights Act energy on the court's shadow docket. First, the court granted the federal government's petition for certiorari in Arthrex, which asked whether the appointment of judges in the U.S. Patent and Trademark Office complies

with the appointments clause. Apparently, some IP people were unhappy with a fleeting remark in our discussion of Google last week. And so that's all we'll say about that for the time being. On Friday, the court decided to schedule for full argument the case involving a challenge to the president's memo, which purports to exclude undocumented immigrants from the census count that is used to apportion house seats and to allocate federal funds. Background here is that a three-judge district court had invalidated the memo, and the court could have taken a look at that, I think, clearly correct three-judge court opinion and summarily affirmed. It did not do that. Instead, it scheduled the case for argument on November 30th, which is very fast. But I think it has to be because all of this has

to happen before, you know, right now commerce faces a deadline by the end of the year to send the president to the report with a census tally, which either complies with this kind of absurd executive order or is consistent with previous reports, which simply report population. So the consequences of this just are hugely significant. It could change the allocation of seats in Congress. It will definitely determine the allocation of billions of dollars in federal funds. And as I just suggested, the merits are, I think, I think we all think are extremely weak for the Trump administration. There are also some questions about ripeness and questions about remedy. And it is at least possible that those complicating factors are in part the reason the court did not summarily affirm. But I am not wildly confident about this

case, despite feeling wildly confident about the merits of this case. And I'm sure we'll talk more about it when it actually is up for argument. There's also another interesting petition that was relisted. This was in the case of McKesson v. Doe. So this is a petition for certiorari that was put on the court's docket. A relist typically occurs where the court takes no action on a petition that was listed for a conference, thus effectively listing the petition for a subsequent conference. A relist can often be a precursor to a grant, or it could be an indication that one of the justices is electing to write something about the petition. This particular petition is a noteworthy one, though. It involves DeRay McKesson, who is a civil rights and criminal justice

organizer. He allegedly helped lead a protest for Black Lives Matter near the Baton Rouge Police Department building, during which an unknown assailant, who was not McKesson, allegedly threw a rock at a police officer, injuring the officer. Last April, the Fifth Circuit held that McKesson could potentially be held liable for the actions of the unknown assailant, despite the Supreme Court's holding an NAACP versus Claiborne Hardware. That's a 1982 case that said civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. This is an important petition that implicates really critical First Amendment speech issues. The Fifth Circuit said that McKesson could be liable for those events that happened at his rally, even though

he did not encourage any violence. But interestingly, one of the judges of that three-judge panel, Don Ouellette, had a change of heart after the initial panel's opinion had been published. And he wrote a separate opinion explaining his change of heart and why he believed that NAACP versus Claiborne hardware should apply. Obviously, that doesn't change the nature of the Fifth Circuit's ruling. There are still two judges to hold that he could be liable for this, but it makes the prospect of this cert petition even more weighty for DeRay McKesson. Another development, the court denied review in a case involving the interpretation of the statute that we kind of commonly refer to as Section 230.

That's the provision of law that gives internet platforms immunity from certain lawsuits. The president has been vocally critical of the law. People might remember he issued this weird, possibly unconstitutional, possibly just empty posturing executive order seeking a reinterpretation of Section 230 back in May. You know, this is, you know, maybe of a piece with his calls for defamation law to be revisited, possibly abandoned. But in any event, in this case, which was the Malwarebytes versus Enigma software was the name of the case,

court declined to take it up. But Justice Thomas wrote a statement indicating that in a future case, he might be open to reconsidering whether the statute does in fact support the existing immunity the courts say it provides to internet platforms. So we're going to keep our eye on this issue.

Well, so this was really interesting because it's kind of a counterweight or maybe just a caveat to one of the statements that Supreme Court nominee Amy Coney Barrett made during her confirmations. And she repeatedly said that courts don't have agendas and don't look for cases. And she was talking specifically about an agenda with respect to Roe or Casey. but we've actually seen, and I think this case suggests, that there may be situations in which justices may appear to invite subsequent litigation on a particular issue. And this is not the first time in which a justice has signaled that, you know, this isn't the case that he or she would like to decide this particular question on,

but maybe there's a better case coming down the pike. So I think Justice Thomas did that in the box concurrence where he was like, you know, I'm fine with you denying certiorari here, but you can't put this off forever. I think we also saw this with Justice Alito in Gundy saying, you know, this isn't the case necessarily where I want to reevaluate the entire administrative state, but maybe there's another case coming down the pike that would do that. And they're not explicit invitations to do so,

but it certainly suggests that the court or particular persons on the court are still open and that a question is still open with them. So not necessarily an agenda per se, but an invitation or an opportunity with different facts, different circumstances to rethink an issue that the court has passed on right now but might be more receptive to in the future. Yeah. And obviously any statement like that, even if it's an oral argument, creates huge incentives for litigants to actually find that case and bring it. And in fact, even justices' prior writings in their academic career would also create incentives for litigants to bring them cases that they think that person might be interested in as well. So there were also some

important developments on the court shadow docket, which includes the emergency applications that the government files to put on hold lower court decisions that enjoin government policies. So one such development occurred in Trump versus Vance, the case involving the New York grand jury subpoena for Trump's personal financial records to the accounting firm. The lower courts rejected the additional challenges that Trump made to the subpoena, and now Trump is asking the court to put on hold those rulings, thus preventing the subpoenas from being carried out. I think it's very possible that the court won't act on this application until after the election, though, of course, we will wait to see. And there was a new lawyer joining Cy Vance's team, and that lawyer was Michael Dreeben, who was the former deputy solicitor general who argued, I think, probably the lawyer with the most criminal law experience of anyone before the Supreme Court. So it was notable that he joined Cy Vance's team. That team is already very strong and, like, did a great job, right, when the case was actually before the court.

And that struck me as a pretty sort of eyebrow-raising development in that I think you're right. There's basically nobody who has more credibility with the justices on criminal law matters than Michael Dupin. Back, back, back, back again. Also bringing some very strong enforcing the Voting Rights Act energy to the table, the court granted the federal government's request to put on hold a lower court decision that prevented the government from prematurely stopping the census count. The lower court had found that the administration's sudden change about the counting deadline was unlawful, and the Supreme Court's stay allows the administration

to stop the census count immediately. As the kids say, or the Supreme Court justices hear, prematurely stopping a census count is necessary to enforce the Voting Rights Act. Only Justice Sonoyor noted her dissent from that ruling. Wasn't this one of the many moments in the last few weeks when you've been like, oh, Justice Ginsburg would have, it wouldn't have obviously been enough, but she would have been with Justice Sotomayor in that dissent.

It seemed really clear to me. And just like the first of probably many such lonely dissents that Justice Sotomayor is going to be writing. All right, moving on. So the court is still sitting on a request from the Pennsylvania Republican Party seeking to put on hold a lower court, actually a decision by the Pennsylvania Supreme Court that would have extended the ballot return deadline in the state of Pennsylvania. It is just weird the court has now been sitting for several weeks on this stay application. The election is really close and the court typically tries to expedite consideration of these things. This could really matter in a state like Pennsylvania if there are three additional days for permissible receipt of absentee ballots. And there is all kinds of speculation happening in election law world about what kind of compromise might be in the works behind the scenes, what kind of dissent or dissents might be in the offing. But there is something out of the ordinary happening that is leading to this really surprising delay. And I don't really know what, but I'm sure that there is something

significant. All right. Well, that certainly is comforting, Kate. So while all of this was going on in the conference room, there were actually real things happening in the courtroom, or at least the virtual courtroom. So let's turn to the actual October sitting and recap some of the oral arguments that the court heard in this first sitting of the new term. So Kate, do you want to get us started? I'm happy to. I'll talk about the first of the cases, which is Torres v. Madrid, a Fourth Amendment case that we previewed a few episodes ago. And the question here is essentially what constitutes a seizure under the Fourth Amendment. And that matters because if something is a seizure, then the actions of police officers have to satisfy the Fourth Amendment's reasonableness requirements.

And if whatever the police did is not a seizure at all, then the Fourth Amendment isn't even implicated. And so that analysis doesn't even have to happen. So the facts in the case, which, again, we previewed previously, but bear repeating because they're so striking, really kind of capture what is at stake. So police officers here went to an apartment complex. They approached a car. They were not in police uniform. And the driver believed she was the victim of an attempted carjacking and drove off. Officers fired weapons into her car. They hit her. Multiple bullets hit her. She did not stop. So she was injured but able to keep driving.

She drove to a parking lot. She picked up another car. She drove away. So if the officers shooting her did constitute a seizure for Fourth Amendment purposes, then the Fourth Amendment is implicated, and we ask about whether the seizure was unreasonable. But if the shootings didn't constitute a seizure again the fourth amendment completely silent on this shooting so the legal test that's sort of at the center of this case there are a couple of big cases

one united states versus mendenhall which announces a test in which a person has been seized if in the view of all the circumstances surrounding the incident a reasonable person would have believed that she was not free to leave and in a later case, California v. Hodari D., a majority of the court in a Scalia opinion said there is no seizure when a person continues to flee, even if a reasonable person wouldn't feel free to leave. So Kelsey Corcoran of Oreck, who's a terrific appellate lawyer, represented the petitioner, basically articulated a legal rule that says a seizure occurs whenever there is physical force applied to the body. So there are lots of hypos at the oral argument. I thought it was really striking that from kind of the first beat of the argument,

sort of what an originalist note Kelsey struck in attempting to persuade the justices that this was a seizure within the meaning of the Fourth Amendment. I mean, her facility with like pre-constitutional history, common law cases, including some from the 17th century and the specifics that grew out of them was remarkable in its depth and comfort. But the limitations of the method seemed on such stark display to me during this argument. There are all these questions about whether certain kinds of interactions would or would not constitute a seizure. And it's just so difficult to figure out what lessons to draw from founding era practice in which there were no police officers to speak of, right? These are sort of civil actions instituted by other civilians, these encounters that we are trying to derive lessons from regarding the meaning of the Fourth Amendment

and encounters with police officers today, like so very early on, she says, you know, there aren't really police forces until the 1840s or 1850s. And so how much these common law cases that predate organized police forces should matter, like seemed like a very open question to me. And yet I think strategically, she is right to pitch to an originalist and an increasingly originalist court.

I mean, obviously, Judge Barrett hasn't been confirmed, but if she is, I think any smart litigant is going to really focus on, in a constitutional case, on this kind of founding era material and really emphasize that. At the very end of the argument, she started talking about workability and pragmatic considerations that also argued in favor of the test that she was advancing before the justices.

But I was just really struck by kind of how originalist the entire debate was. What did you guys think of that dimension of the case or, you know, the argument in general? From one justice, at least, there wasn't so much big originalist energy, but some big dog energy. So, Leah, what was going on with Justice Breyer? This is not the first time he has introduced dog hypos into oral argument. So Liz Reese and I talked about Justice Breyer's dog hypos in McGirt versus Oklahoma, and he did it again here. You know, he says, Morning. Suppose that a policeman without a warrant wants to search a private person's house, enters in the middle of the night before he can do anything.

He doesn't look for a single thing. No chance to look for or search for anything a big dog drives him out. Is that a search? Justice Alito, who's a baseball fan, wanted to know if a pitcher intentionally beans the batter. Is that a seizure? There was just really a wide range of hypos to test the petitioner and the federal government's rules. But Kate, I think you're completely right that the argument also highlighted the kind of limitations of the originalist practice, given that the cases that they were looking at were all common law actions for unlawful arrest. How did that happen? It was

when one private person would arrest another. And then if that person was freed, then there could be an action for unlawful arrest. And they had to go through the common law elements of unlawful arrest. And they don't perfectly match our Fourth Amendment doctrine. You know, it also predates the organized police force, as you were noting. And Justice Gorsuch, you know, wanted to know about the prevalence of guns at the time because he was like, you know, I don't see guns in these cases. So what do I do about this? Like, what does that tell me? Because there are all these questions about, well, if you don't personally touch the person, but you know, you use like a baton or an instrument, or, you know,

fire a gun from far away, is that also a seizure? And so it was just obvious that you have to do like a lot of extrapolation and inference in order to translate those cases to, you know, the modern police force that we have today. There also seemed to be, I think, some skepticism of the accuracy of the history, or at least some suggestion that history, all history, can be indeterminate in some way. So there was an interesting dynamic between the justices about Hodari D., which was, as Kate said, a Scalia opinion. And you had a couple of justices, including Justice Sotomayor, saying things like, Justice Scalia was an originalist. How could he get the history wrong? So I wonder if this was sort of a strategic effort to, you know, sort of poke holes in the kind of originalist armor and suggest like, you know, a lot of this can actually be indeterminate and we can't really vouch for

the veracity of some of this history. On Har-e-D, there was also some interesting discussion about sort of what parts of the opinion were entitled to what kind of weight. So Kagan at one point suggested the reasoning Hadar-e-D was entitled to respect. And there are all these questions about whether the application of physical touch were dicta or not dicta. Gorsuch seemed to disagree with some of what Justice Kagan suggested about sort of how significant this, the discussion of that kind of centrality of physical touch between a police officer and a suspect would be. I can't extrapolate much from that discussion except that, you know, in terms of their future treatment of prior cases. But I think that a lot of the action is going to lie there in terms of how these big debates about the court's approach to stare decisis and precedent are not

likely to come to some immediate fruition in terms of their discarding explicitly and wholesale a lot of cases in the very near future. But how they decide to approach what parts to retain and what parts to discard of prior cases seems really important. And so I will read very closely whatever the court does with Hadar-Edi, I think, in this opinion. Yeah. And even if it doesn't come to fruition immediately, it's clearly on the justices' minds, given that Justice Kagan wanted to lay out a case about why you need to give stare decisis benefits and effect to the reasoning in prior cases, even if it's not necessary to the outcome, where lower courts have relied on it. And then when Justice Gorsuch questioned it, Justice Sotomayor immediately came back to it on the second ground of questioning was like, no, no, no, no, no,

like reasoning and decisions gets respect. Well, I mean, when you think about what else is on the docket for this term, like maybe they're already planting some signposts. I mean, you have that big case, Fulton versus City of Philadelphia, where the whole question is how much respect is Smith entitled to? And so there are lots of big questions about stare decisis coming down the pike. Yeah. So bottom line on this case, any predictions? I kind of think the petitioner is going to win. Justice Alito was unsurprisingly very hostile to someone who was seeking to hold a police officer accountable. But it's, I don't know, I kind of think the petitioner is going to

win just both based on the force of the reasoning and Hodari D, the fact that the more conservative justices did not seem inclined to question Justice Scalia's assessment of the history, the fact that Justice Kagan, Justice Sotomayor, and Justice Breyer were all sympathetic to the petitioner. So that's kind of where I come up. The fact that you do have, we should flag, you sort of said that we said this kind of obliquely, but that the federal government is in the rare posture here of actually siding with the petitioner and finding, you know, however, I'm not sure the federal government would ultimately want this petitioner to prevail, but certainly that there was a seizure for Fourth Amendment purposes is a proposition that the

federal government was advancing here. And so that's worth at least flagging. Yeah. And that probably helps too. Right. There was one little odd fumble in the argument as the court was trying to transition from Torres arguing to the federal government arguing in support of her. The chief justice accidentally called on the federal government after Justice Kavanaugh had concluded his questioning instead of allowing the petitioner to wrap up. Ms. Tableson? I'm sorry. Ms. Corcoran, you can take a minute to wrap up if you'd like oh thank you your honor blooper supreme court bloopers one last concern maybe i listening to the arguments this week i had some initial concerns

about justice breyer and whether he was feeling okay. He asked petitioner only one question in this case, and he passed on asking any questions to the federal government. And then he also passed in the later argument in the day, Pareta. And part of me wonders if he's like a little depressed, you know, maybe with Justice Ginsburg's passing. a part of me wonders if he's feeling okay. But then I kind of like looked at the arguments. And I think maybe maybe what he was doing was some self aware policing about his inability to constrain himself to the apparent three minute limit on questioning. And he was skipping questioning periods, knowing that he would have more than 180 seconds of questioning for someone else. And so it would like balance out where he wasn't speaking too much relative to the other justices, or at least I hope that is part of what is going on. It can be both. I love that he's adapting to the format potentially, you know, I like that. Yeah. Go Justice Breyer. Also, I mean, he's in a different role than he probably has been. You know, Justice Ginsburg was sort of the leader of that wing of the court.

Now the wing is much smaller and he's sort of the big dog on it. Maybe that explains the dog hypos and also a little more muted energy from him. Maybe he's trying to sort of figure out how he's going to do this. Yeah, that might be. Another case we wanted to briefly highlight was Chicago versus Fulton. This case involves bankruptcy proceedings. It might be easier to summarize the facts a little before we describe the legal issue. Basically, the city of Chicago, as well as other jurisdictions, levy a bunch of fines and fees. And when people can't pay the fines and fees, Chicago seizes their cars. In this case, two drivers had their cars seized for failing to pay tickets. Chicago also charges several

thousands of dollars to get cars back. So when people aren't able to pay, they file for Chapter 13 bankruptcy. And the question in the case is, can a driver get their car back from a creditor here in Chicago when they file for bankruptcy? If they can't, they might find it harder to go to work, earn money, care for their families, and really recover from the bankruptcy proceeding. And that brings us to the legal question, which is whether under the bankruptcy code's automatic stay and turnover provisions, a creditor can keep a debtor's property after the debtor files for bankruptcy and requests return of the property. Section 362A3 of the bankruptcy code, the automatic stay provision prevents

creditors from any collection activity during bankruptcy proceedings. It prohibits, quote, any act to exercise control over property in the bankruptcy estate. And there was, in the justices and advocates' words, a kind of metaphysical question about whether refusing to return property when someone requested it was, quote, an act and whether there was any meaningful distinction between an action and an omission or inaction. Section 542, the turnover provision provides that an entity in possession, custody, or control of property that the trustee can use shall deliver it to the trustee. But the city and the federal government argue that this provision, the turnover provision, controls and that it does not require the return

of property until the trustee files a formal legal proceeding seeking the property. And they worry that an automatic return interpretation of 362 would make Section 542 irrelevant. The debtor, who's represented by esteemed retired bankruptcy judge Eugene Wedoff, argues that Section 362 is a way of enforcing Section 542 without actually leading to the delay or requiring an adverse proceeding. I think it's hard to tell from the oral argument where the justices were leaning, although if I had to guess, I would say maybe they will embrace a very formalistic textualism and rule for the city and say, in order to not make the turnover provision superfluous, we will say that no

return is required under the automatic stay provision. Even though I think that maybe from bankruptcy policy, it might be better to rule for the debtor just because, again, if you don't return their car, they're going to find it so much harder to do things that will help themselves recover from a bankruptcy. And also requiring debtors to do things before you return their property is in some ways like a violation of an automatic stay provision, which is supposed to allow the debtor to recover things like before the actual culmination of the bankruptcy proceeding. All right. Another case on the docket for oral arguments this session was United States versus Briggs. So this is actually a series of consolidated cases, all of which involve male military personnel who have been convicted of raping female military personnel.

The defendants argue that the statute of limitations should have barred their prosecution, and the government argues that there is no statute of limitations for military rape because Congress exempted all military crimes punishable by death from limitations, and that would include rape. The defendants counter that the cruel and unusual punishments clause of the Eighth Amendment prohibits the death penalty for all rapes not involving fatalities, including those that occur in the context of the military.

That in turn means that there is a statute of limitations for military rape and that it expired before any of these three men were prosecuted. The U.S. Court of Appeals for the Armed Forces agreed with the defendants here. The entire case turns on this question of what does it mean to be quote-unquote punishable by death? Does it mean that the offense is punishable by death under a statute like the Uniform Code of Military Justice, or does it mean that it is punishable by death under the Constitution and the court's decisions in Coker v. Georgia and Kennedy v. Louisiana. The government, which was represented

by Jeffrey Wall from the Solicitor General's office, argued that punishable by death means punishable by death under the UCMJ. And as the government explained, the UCMJ makes rape and offense punishable by death, specifically under Section 920A, which states that any person subject to this chapter who commits an act of sexual intercourse by force and without consent is guilty of rape and shall be punished by death or other such punishment as a court martial may direct. The government made a statutory interpretation argument here that Congress did not intend the military rape limitations period to be subject to the court's Eighth Amendment jurisprudence. It rather intended military rape limitations period to be subject to the court's Eighth Amendment jurisprudence.

It rather intended military rape to have no statute of limitations, irrespective of what punishment is ultimately available. Because the statute authorizes capital punishment for rape. Rape is, quote unquote, punishable by death, whether or not that punishment may actually be carried out. And this relates to a second argument that the government made, which is really a policy argument. The government said that Coker and Kennedy, which impose limits on the availability of death for the crime of rape that doesn't involve a fatality, those precedents don't apply in the context of the military because of Congress's authority over the military and specific policy arguments that apply only in

the military context. So it's a kind of military exceptionalism argument about the need to maintain morale within the military, the need to maintain standing with other countries in terms of international disputes and whatnot. The Supreme Court has never actually decided whether the Eighth Amendment applies to courts martial, and the government argues that it should not apply here because of the deference that the court owes to Congress in determining the regulations, procedures, and remedies related to military discipline. The defendants, who were represented by Steve Vladek of the University of Texas, offered a statutory argument that avoided having the court decide the constitutional question of

whether Koch or in Kennedy apply in the context of the military. They specifically argued that section 855 of the Uniform Code of Military Justice allowed Congress to enact its own statutory prohibition against cruel and unusual punishment, which the defendants claim prohibits capital punishment for military rape without reference to the Eighth Amendment. So Section 855 states in part, punishment by flogging or by branding, marking or tattooing on the body or any other cruel and unusual punishment may not be adjudged by any court marshal or inflicted upon any person subject to this chapter. So they are offering the court an off-ramp to get away from the constitutional question by providing their own statutory argument for deciding this case narrowly. I'm not really sure where the justices were leaning.

I think Justice Gorsuch maybe was sympathetic to Briggs' statutory interpretation argument and maybe Justice Sotomayor was as well. But perhaps even for the justices who agree with the government on the statutory interpretation argument, I can imagine some of them writing separately to argue in favor of narrowing the court's decisions in Coker and Kennedy and maybe revisiting them. So even if there is this constitutional avoidance off-ramp, we still might get some clues about where the future of the Eighth Amendment is. So I thought the whole discussion was really interesting just because of the military context, which some justices seemed amenable to this idea

that the military is different and things that we might allow for in a civilian context just cannot fly in the context of military justice. So there was this really interesting colloquy between Justice Alito and Steve Vladek, who argued on behalf of the defendants about the use of rape as a weapon or tactic of war, as opposed to the use of rape in a civilian context. So here's a little clip from that. Throughout history, there have unfortunately been many instances in which occupying armies have gone on rape sprees and have raped many, many women in the territory that they are occupying. Suppose that were to happen again. You think it's settled under our case law

that the death penalty could not be imposed on members of the military who engaged in that sort of practice? I thought this was a really important context to raise. I may be surprised to hear it come up in a Supreme Court case, but it is the case that rape is frequently used as an article of war in conflict zones. And it recalled a book that just came out a couple of weeks ago by Christina Lamb, who is a foreign affairs correspondent for the Times of London. And the book is called Our Bodies, Their Battlefields, War Through the Lives of Women. And she basically traces all of these different conflict zones from Russia and Leipzig in World War II, all the way to the current moment, Bosnia, Herzegovina,

where rape against women and sometimes men is used by an invading force in order to tame and to subordinate a particular group of people. And you could hear and see shades of that kind of context coming through in Justice Alito's argument. Like, what does this mean for the conflicts between nations? What does it mean for just the military force if you take the question of death punishable acts off the table with regard to rape? That colloquy was interesting and it certainly was the case that the Solicitor General returned a few times to a World War II era example involving a U.S. service member raping a civilian child and in order to underscore the

potential sort of foreign relations harm to, I guess, allowing to go unpunished or, you know, to operate outside the orbit of the ultimate punishment, rape by members of the military. But I'm just because those aren't the facts of these cases, I'm not sure how much traction that argument got. And I also thought I now can't remember whether it was Kagan or Sotomayor who posed this sort of challenge. But there's the kind of international relations component, but there's also the sort of unit cohesion, military readiness. The SG is making all these pragmatic arguments about why it's important to have this penalty available. But it is not at all evident to me why those arguments are limited to

or even specific to the context of rape. You could imagine that there's all kinds of offenses by members of the military that, you know, attacking, physically attacking, right, not with sexual violence, but just violence, civilians, you know, in a war zone. And it's, you know, it seems to me that leaving those sorts of crimes under deterring or under punishing, if that's the theory, those kinds of crimes could well be damaging to relations with foreign nations and to internal unit cohesion and readiness. In a similar way, it's just not clear to me that there are very strong bases for distinguishing between rape and other kinds of crimes committed by members of the military. So Steve Vladek, I think, did try to draw a distinction

between what he called rape simpliciter, which I assume is sort of, you know, rape in the civilian context or rape that is not undertaken in the context of a theater of war, as opposed to rape in these conflict zones as a means of coordinating another group. But I'm not sure he had as robust an answer for the kind of limiting principle that you are suggesting, like what distinguishes rape from any other kind of crime that might happen in the context of the military that could also go to the question of, you know, unit cohesion, as you say, or, you know, just the general standing of the military in the eyes of other nations. And I think that was a harder distinction

to have drawn. This is focused primarily on rape, but you can imagine like the question of how other constitutional precedents apply in the context of the military continues to be a really live and important question. in the UCMJ against adultery could still stand in the face of Lawrence versus Texas, which invalidated prohibitions on sodomy, but also suggested that there was constitutional protection for any kind of consensual adult sex that took place outside of marriage. And the military, again, citing the sort of military exceptionalism trope, talked about how the need to punish adultery in the context of the military was important because marriage was really important for the military. It was the bedrock of the family. Service personnel needed to know that they could go off and be shipped off,

secure in the fact that the integrity of their families would be protected by the military and the military system of justice. So, you know, there are lots of places in which that limiting principle is not just about homicide or something, you know, broad and heinous, but about things that we might think are not even really a proper subject of government regulation in the civilian context, but might be something that the military thinks

is very much subject to and within their purview. And this was another case where Justice Ginsburg's absence was really felt because, of course, she was the person who filed the brief in Coker that challenged this idea of rape exceptionalism, which she argued represented and rested on this notion of female purity. Of course, it's also important to acknowledge that the military has obviously dramatically like under enforced prohibitions on rape. And that that too is based on, you know, the diminishment and devaluation of women in the military and, you know, perpetuates that as well. But I just think it's sad not to have Justice Ginsburg's perspective on the court, you know,

as you know, we like grapple through what those issues and how those issues play out in this case. Yeah, I mean, those kinds of pragmatic dynamics, too, Wall did try to invoke, right, suggested we have, you know, delayed reporting and underreporting. And so it is important that there be no statute of limitations so that there will be an encouragement of, you know, people coming forward to report when they are ready, even if not immediately following an offense. Just given the deficiency within the military, I think, when it comes to actually taking seriously both responding to and preventing rape from occurring,

it was a little, you know, made it a little hard to swallow these arguments that somehow just, you know, made it a little hard to swallow these arguments that somehow just, you know, leaving open a limitations period so that the death penalty is on the table for, you know, a very small subset of rape offenses in the military while potentially taking the pressure off the military to take other kinds of more systemic steps to address the problem of sexual violence. Like I just found like a little hollow. But that seemed to be the argument that he was making. It's important that the death penalty be out there in order to prevent, deter, and adequately punish rape in the military. And it's also important to note that the implications of this case are not quite so dramatic as maybe some of our discussion and the court's discussion made clear,

given that Congress amended the UCMJ by enacting Section 843A, which includes rape among military crimes for which there is no statute of limitations, whether or not it is punishable by death under this provision. So no matter what the court says in this case, rape in the military does not have a statute of limitations for offenses committed after that amendment. Which is in 2006. Yes. But the defendants in this case were tried for actions that occurred before the amendments, though one of the trials occurred after the amendment. So does that suggest then that given that this may not be an issue going forward for that many

cases, that maybe they just tried to decide this on statutory grounds and avoid the entire question of the application of Coker and Kennedy? I think it's possible. But again, I just don't think some justices are going to be able to resist writing their thoughts about the Eighth Amendment's application in this context. Inviting reconsideration of Kennedy, maybe, which is a five-four decision. Like, you could well see that last case is Pareda v. Barr. And this case is about eligibility for humanitarian relief from immigration proceedings and specifically what kinds of criminal convictions prevent an immigration judge from considering the hardship that deportation would create for an individual's children. Mr. Pareda allegedly presented a false social security card to obtain employment at a cleaning company. He had entered the United States without legal authorization, and he was convicted for the misdemeanor criminal impersonation offense and sentenced to a $100 fine and no jail time.

But the statute he was convicted of actually contains a bunch of different offenses, some of them including identity theft and carrying out a business without a license, and some of those offenses include the intent to deceive others while others do not. Mr. Pareda was later placed in removal proceedings because of his lack of legal authorization. And he applied for a form of relief called cancellation of removal. That's a discretionary form of relief that's based on a number of factors. And one of those factors is hardship on family members who are United States citizens. Mr. Pereda has citizen children and a child who is also a DACA recipient.

But under the Immigration and Nationality Act, you cannot get cancellation of removal if you're convicted of a crime of moral turpitude. The government is arguing that under the statute, an immigrant has the burden of showing their eligibility for relief and that an immigrant cannot carry that burden if they are unable to prove what provision they were convicted under. Mr. Pareda argues that this turns the so-called categorical approach on its head. The categorical approach is basically the method that courts use to determine if a prior state conviction qualifies as one of the federal offenses listed in the INA or the Armed Career Criminal Act. Under the categorical approach, courts are supposed to look at the elements of the state offense, not the facts of a defendant's offense, and if you ask if those elements correspond

to those listed in the federal statute. Under the categorical approach, when a statute prescribes multiple offenses, you presume the defendant was convicted of the narrowest offense. That is, if any state offense under the statute would not qualify under the federal definition here of a crime involving to figure out which particular offense the defendant was convicted of, but that's basically it. And here there aren't documents that specify which precise crime Mr. Pereda was convicted of. And so under a traditional categorical approach because it places the burden on an immigrant to establish their eligibility for this kind of relief? This case generated a debate among the justices about where the categorical approach comes from and why it exists. One idea that was floating around is that the categorical approach exists by virtue

of the fact that the government has the burden of proof in criminal cases, like those involving the Armed Career Criminal Act, but that rationale would not necessarily apply to eligibility for discretionary forms of relief from civil immigration proceedings. There was also a question about whether determining what a conviction is for is a factual or a legal question. If it's a legal question, then the burden of proof wouldn't really matter,. If it's a legal question, then the burden of proof wouldn't really matter, since if it's a legal question, then who bears the burden of proof isn't particularly significant. Justice Kagan seemed to express dissatisfaction that Mr. Pareda, who was represented by Brian Goldman of Oreck, hadn't focused as much on arguing that this was a legal

question, but I also couldn't tell from her exchange with him and then later with the federal government if she actually thought it was a legal question versus a factual one. With the government, Justice Kagan seemed to say maybe this is a factual question, only in the sense that what did I agree to is a factual question and contract interpretation, which is to say it's not really a factual question at all. And it's important to note that the legal issue in the case is about categorical eligibility or ineligibility. That is, even if Mr. Pareto wins, the government could ultimately deny him cancellation of removal, which is a discretionary form of relief. Okay, that was a lot of information about the categorical approach and state offenses. Initial impressions. I think

this case in particular highlighted that it's harder to tell, or at least it's harder for me to tell in this format, where the justices might be leaning. It seemed like Justice Thomas and Justice Alito were leaning toward the government. Justice Sotomayor even asked a question that seemed to be predicated on the view that Mr. Pereda was going to lose. She basically asked him, assume you're going to lose, should we vacate rather than affirm? Are there any arguments left under which you might prevail? The chief justice brought up the prevalence of plea deals. This is something he has brought up in several criminal cases. But I guess I kind of think Mr. Pereda might lose in part because Justice Gorsuch didn't seem sympathetic to the way that Pereda had constructed the argument.

Justice Gorsuch seemed to say or want to think that Mr. Pereda should be arguing that just on the facts, this wasn't a crime involving moral turpitude and that we should just get rid of the categorical approach full stop. And as I was noting, it wasn't clear whether Justice Kagan was sympathetic to the immigrant. And without those two, it's hard to see Mr. Pereda winning. On the other hand, Justice Breyer seemed to bring that big dog energy in favor of the immigrant. But he's just one big dog. He can't do that much but bark on his own, you know? Right. But he kept going at the government. So can I ask a question about Gorsuch? I wasn't sure what to make of that.

Maybe we should just throw out the categorical approach altogether and just like let this like fight this out in the facts of each of these cases. And Goldman early on said something like, well, this is a pretty unusual case because these issues were happening. You know, these these proceedings were happening in tandem. But a lot of the time, you have somebody in some kind of deportation proceeding, where there's, you know, like a 30 year old conviction at issue and mentioned a case that the court is holding right now, whose facts look like that. And so it's a lot harder to see how you fight about the facts under those kinds of circumstances. So it would seem to me that it would be bad in general. Now, if we're just sort of focusing on the INA, as opposed to the ACA context, it would be bad to jettison the categorical approach, but maybe not. Like, do you have an instinct? This is

like a world you know very well about whether it would be better or worse to have these cases evaluated in a more fact-driven way. I think for the reasons you give, it would be really hard because while, you know, the definition of the offense goes to eligibility for discretionary forms of relief, in other INA type cases, the question is, does that offense make you eligible for deportation at all? And forcing someone to litigate the facts behind a 30-year-old conviction that odds are was resolved by a plea deal, and so there just isn't going to be anything really at all that they could obtain, I think would just be pretty hard. And I worry would just devolve into these loosey goosey credibility determinations that, you know, by and large are resolved against

immigrants. Whereas the categorical approach imposes some formality. And yes, it sometimes leads to really odd results, but at least asks the court to focus on things that are readily available, like the text of the statute, judicial decisions, interpreting it, and charging documents. Whereas if the question is just like what happened 30 years ago, I think that that would be pretty hard to bring up in all these cases. All right. So having discussed the October sitting,

which seemed pretty jam-packed for a court that is still operating in a kind of shutdown mode. They managed to get through quite a lot of big ticket items in this particular sitting. So we will wait and see what happens with the cert petitions. And we obviously have cases that are already slated for argument in November, but things are moving on at a pretty brisk clip for this eight-person court. With that in mind, this eight-person court is likely not going to be an eight-person court for long. So shifting to court culture, let's talk a little bit about the conclusion of the Barrett confirmation hearing., Kate, Leah, I know you had something to say about the hug and thank you heard around the world.

Well, so we should say we did, and you were not able to join us, Melissa, but Leah and I did a recap, or we did like a mid, three quarters of the way through the confirmation hearings emergency episode in which we talked about the first couple of days of substantive exchange, I mean, you know, such as it was,

between the senators and Judge Barrett. But we recorded before the last day of the hearing, which was like outside witnesses. I confess I didn't really watch it. I don't know if you guys did. But I did take note of what happened at the actual close of the hearing, which is after, you know,

four days of confirmation hearing, you know, just two and a half weeks out from an election, Senator Dianne Feinstein, the ranking member, so the most senior Democrat on the committee, was moved to thank Chairman Lindsey Graham to describe the hearing as one of the best she had participated in, to basically suggest it gave her hope

about sort of the possibilities of bipartisan cooperation going forward. So she rose, moved to Lindsey Graham, and embraced him in a maskless hug. And people were rightly scandalized. Look, she didn't kiss him on the face, Melissa, so this is all good, right? I'm glad that you're all listening. Keep your face kissing within the home for now, for now. This was so embarrassing and just perfectly encapsulated so much of the Democratic senators failure on judges. I mean, a part of me pities Dianne Feinstein, who, you know, is obviously getting up there and, you know, maybe a sympathetic reconstructionist. She like literally forgot about everything that's happened over the last four years,

much less four days, and was therefore doing this. But even that, like she, if that's true, she should not be on the Senate Judiciary Committee. She shouldn't be on the Senate. And in any case, it was just a ridiculous and silly thing to do. I mean, she is hugging her opponent who is jamming through this nomination, breaking the promises that he himself made, who was in a tight race with a Democratic challenger. And where Graham, you know, she's like to go back to this sort of like epidemiological piece of this. Graham steadfastly refused to get tested himself that week, even though he was presiding over the hearing in a room filled with people. He participated in a debate against his opponent,

Jamie Harrison, with Harrison having constructed a plexiglass divide because Graham would not agree to be tested prior to the debate. It was just unbelievably poor judgment. Politics aside, just from the perspective of her own health and everyone else's health. It also, I think, undermined the message that, I have to say the Democrats were very disciplined about, like, you know, Amy Klobuchar, Mazie Hirono, Richard Blumenthal all stated over and over again

that we should not be here. This is unorthodox. And I think, you know, and to her credit, I will say she may have been responding to what Lindsey Graham said, because Lindsey Graham, you know, in concluding the hearing said, you know, I've been surprised by how pleasant this has been. There haven't been moments of rancor between the two sides. You know, it's been very civil. And, you know, this goes back to the discourse of civility and collegiality that pervades a lot of these spaces. And I think she very well have been responding to that. Like, yes, it actually was incredibly civil. But I think, you know, it is fair to say that it did give a kind of veneer of legitimacy to it that the Democrats had been working really assiduously

to disrupt throughout much of the hearings. And also, like, Senator Hirono, after Senator Graham, you know, said he was glad that her cancer treatments were successful, still thanked him, but she immediately followed it up with, thank you, do the right thing, you know, get a COVID test and don't do this hearing. It was a thank, next. Right. So in the aftermath of that, there was immediately outcry from several groups. Demand Justice called for Senator Feinstein to step down. NARAL, which is an abortion rights group, called for Senator Feinstein to step down, even though they have supported her in the past and given her like 100 percent favorability rating, they said the committee needs new leadership and that she offered an appearance of credibility to the proceedings that is widely out of step with the American people.

Representative Katie Porter, personal icon of mine, said, I strongly disagree with Senator Feinstein that that set of hearings was one of the best or was even acceptable. So she's getting challenged by members of her own party and groups that have, you know, really been strongholds of support for her. And, you know, I just I don't know what is going to happen from this. I like Jelani Cobb, who's a brilliant writer for The New Yorker. I loved he tweeted something like, we're not even talking about bringing a knife to a gunfight. We're talking about showing up with a bottle of wine because you think it's a dinner party. But really, it's a gunfight. That's kind of what she was doing at the end there. Yes.

Yes. I brought a casserole. Cookies. I baked. Right. Speaking of baking, one of the things I thought was really noteworthy, Senator Feinstein actually was, I think, one of the first to really make hay of it. But at one point in the first day,

the introductory day of questioning, Senator Feinstein invited Judge Barrett to introduce her family, which she then did. But that really set off what I thought was a lot of discussion of Judge Barrett's family about her motherhood, about how their household ran. And it was just so striking because, you know, I've watched a lot of confirmation hearings and there have been nominees with young school-aged children. They just haven't happened to be mothers, but they have had school-age children. And I don't know that we had nearly the amount of discussion of how households run, like how laundry gets done, and sort of this idea that all of this sort of household work and child raising is sort of exclusively the province of mothers. So we didn't talk about all the stuff when John Roberts was before this committee

with the two young children? The prior nominee from Indiana with adopted children. I just thought it was very interesting, revealing. It dovetails with a conversation, Leah, that you and I had with the authors of Shortlisted about how maternity and motherhood can be both a burden and a boon to women as they are considered for these leadership positions. And again, you know, the sort of sharp contrast. And I wonder if it was

purposeful to the two justices who were, the two female justices who were first nominated, who were done raising their children at the time of their nomination. Well, at that time, we weren't nominating people in their 40s. How does this play out going forward, right? Will we have the same kind of discussion about family obligations if Joe Biden selects, if he is elected, if he selects a male nominee, if President Trump is reelected, if there is a male nominee, will we see the same sort of thing?

Like, I kind of expect that we won't. No chance. And that, I think, is that these kinds of norms about family life are changing in particular ways and that these aren't the exclusive provinces of women anymore. That, you know, fathers are taking care of kids, are helping out with this kind of household work because most families have two working parents because you kind of have to right now. And, you know, I just, and that has certainly, I think, been the case in a lot of minority families, certainly in mine, like, you know, like this whole idea that women did not work. That was not my experience growing up as a child. And so I just, I just wonder what the message is and how it's being received on the other side,

outside of the Senate Judiciary Chamber and how the public is receiving this. Well, it's also happening at this moment in which like we are in the midst of what may be like an extinction event professionally for many women. People are leaving the workforce if they can and even those who can't in droves because the lack of child care is just an unbelievable burden. Crushing, crushing. And, you know, in places where the transmission rates are low, people are obviously back using some sorts of child care arrangements, but they're spotty and anyone gets sick and you're yanking people out of them, caregivers or kids. And so, you know, so two-parent stable employment is very difficult to sustain. I mean, we're law professors and we have, like, an unbelievable luxury of control over our schedules.

And it's really hard for us, too. And it is so much harder for people who don't. And Barrett is a law professor, too, right?? Like that is, I think, noteworthy. Like she was able to, in many ways, sustain, I think, the career and the family that she was, in part, at least, because she had a degree of control over her schedule and the sort of flexibility that that kind of employment confers. I think there are a lot of things to this. You know, like she did call out her husband in the Rose Garden ceremony as, you know, someone who helped make this possible because he was a very engaged father. I think someone else also reported that her husband's aunt was also living with the family and helped to take care of the children. But that really was

not a part of this narrative. I mean, the idea that there was help and support. Yeah, she sort of obliquely referred to a number of babysitters, and I felt like it would have been a service to everyone to have said a little more about what that meant, right? Like, she clearly has a community that has participated in assisting her and caring for this large family that she has. But these kind of like, yeah, sort of oblique, smiling references to babysitters and their assistants doesn't really give us a lot of information about sort of what that means and what it looks like. And it might have been helpful to your point, Melissa, about what people will take away from this. I mean, you know, sort of one possibility.

She is superwoman. She has managed to do all of these things, raise these seven extremely well-behaved and well-adjusted children, churn out law review articles and now, you know, obtain a nomination to the Supreme Court, pinnacle of her profession at the age of 47, right? 48. you know, obtain a nomination to the Supreme Court, pinnacle of her profession, at the age of, what, 47, right? 48? But of course, there's, you know, behind that story is much more, and she could have shed a little bit more, and she could have shed a lot more light on her substantive views on some of these things, but she could have shed more light if she wanted this, I think, to be a kind of constructive moment. I mean, I don't want to undervalue the privacy of her family, but if she's going to reference babysitters, and she's going to engage in banter with members of the committee about sort of who does laundry in the household, I mean, I don't want to undervalue the privacy of her family, but if she's going to reference babysitters and she's going to engage in banter with members of the committee about sort of who does laundry in the household, you know, it might be useful to say, look, this is kind of

a takes a village situation. Many people have helped us. That's the only way to make something like this work. I would have appreciated that. Or to be fair to her, don't make this a subject of the confirmation, right? I mean, like it could just be like, yes, I have seven children. I am a mother. And that, that, that, that doesn't have to be the substance of what we're talking about, but it was like repeatedly broached over and over again. And, you know, I get that how this is like a humanizing element. It makes people feel like she is perhaps more relatable or accessible to them. But as you say, Kate, when you talk about it in this sort of partial way, you don't tell the whole story. And, you

know, to Leah's point, maybe the story doesn't necessarily have to be told here. All right. Should we leave it there? Okay. Thank you so much for listening. We are very grateful to our Glow subscribers who make this show possible. If you would like to be among this particular group of important and amazing people who make Strict Scrutiny possible, you can sign up to be a Glow subscriber at iTunes. That helps more people find us. As always, we are grateful to our terrific producer, Melody Rowell, who makes us sound so great. We are also thankful for Eddie Cooper, who makes our music, and of course, to all of you for listening. So stay safe, be well, and we will see you soon. Bye. you