Strict Scrutiny - Build A Bridge

Episode Date: April 6, 2020

A special opinions episode! The Supreme Court has issued a lot of opinions recently, and we wanted to get you caught up on some of them. 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, a podcast so fierce it's fatal. In fact, we're your hosts. I'm Melissa Murray.

I'm Jamie Santos. And I'm Kate Shaw. And we have a special opinions episode for you. The Supreme Court, despite its closures, has actually issued a lot of opinions recently, and we wanted to get you all caught up on them. But first, a quick caveat. We want to remind you that we up on them. But first, a quick caveat. We want to remind you that we are still podcasting under quarantine conditions, so the sound quality

may be different. So please, if it sounds great, credit Melody. It's all her. If it doesn't sound great or if children or pets wander in at any point, that is definitely not Melody's fault. You can blame all of our partners for those intrusions. So Kate is literally standing in a closet right now to try to make the audio quality as positive and wonderful as it can be. So you get the award for pulled a chair, a folding chair into like halfway into a closet. So my body is like half in half out of a closet. So I think this will help. But I tried either way I did try. I will say for those of you who are listening at home, Kate literally has two hangers above her and a clothes rack. So she's definitely getting the

medal for the most Herculean efforts to do this properly. So thank you to Kate. And thanks to all of you for tuning in. We've got a great show for you. As always, we have some breaking news and then we'll turn to opinions and then we will finish it off with some court culture. So let's get it started, Jamie. Yes. So we're going to start with some COVID related developments. I think that you all mentioned on an earlier episode that because of COVID-19, the court extended the time for filing cert petitions. Another thing they did, I think, is even more consequential for folks filing Supreme Court briefs, and it has to do with cert replies. The basic background on this is that there's no actual deadline for filing a cert reply after a brief in opposition is filed.

Instead, there's this distribution calendar that dictates when the petition will be distributed to the justices so their clerks can prepare cert memos or give a recommendation to their justice. And the conventional wisdom is that by the time the cert, the petition's distributed, you need to get your reply in to ensure that the clerks will see it. And even though that might be weeks before the actual conference date. This is, the problem with this is there's no way to move back the distribution date. There This is, the problem with this is there's no way to move back the distribution date. There's no, you can't file a motion to move it back

if you need more than two weeks to prepare a reply. And this is particularly problematic in cases where the Supreme Court requests that the SG file a brief about cert. In those cases, there's no deadline. So the SG might wait seven or eight months file a brief with absolutely no notice to you you may not have been working on the case or even looked at the case for like a year and then you have two weeks to clear your plate of everything put a reply brief

together and get it filed before the distribution date that happened to me once we had filed. There was a CVSG in April and the literally the eve of Thanksgiving at like 4 p.m. on Wednesday before Thanksgiving, the SG filed a CVSG brief. And I was elbow deep in flour making pies and I had to like clear my whole weekend of family stuff and just write a reply brief really fast. So but what the court has done now is they have given the option for seeking an extension of the time before cert petitions are distributed to give people a little bit more time to file those reply briefs if they're having problems related to COVID-19. So yay Supreme Court for doing that. I think it could make a big difference for petitioners. Quick question, Jamie, for those of us who are untutored, what is a CVSG brief? So we've talked about that a little bit, but a CVSG brief, it's short for calls for the view,

call for the views of the solicitor general. So when the Supreme Court has a cert petition, often that raises issues relevant to the federal government, the court will say, we think this has some meat to it, but we want to know, SG, whether you think the petition should be granted or not. And so they'll issue this order calling for the views of the Solicitor General. And then the SG files a brief at some point thereafter. A couple other COVID developments relate to a couple cases involving abortion litigation. Right now, in a number of states,

including Texas, Alabama, and Ohio, the states have attempted to ban abortion as a non-essential medical procedure during the outbreak. And generally speaking, courts have put those orders on hold because if you want to get an abortion, it actually is essential that you do it pretty early on for health-related reasons. Right now, as we're taping, the Fifth Circuit issued an administrative stay reinstating the abortion ban in Texas.

But I'm sure that's going to be probably petitioned up, and we'll see what happens with it. And we'll also have to see what other circuits do. Have you seen any newer developments related to that? It is interesting because obviously the medical systems in most states are becoming overwhelmed by COVID-19 patients. So it makes sense that non-essential medical procedures would be deferred until things are under control. And so we've heard about lots of different kinds of procedures,

tonsillectomies or whatnot, elective procedures being deferred until later. But the point that you make, I think, is a good one. And it's not just a question of health. It's actually a legal question. If you defer an abortion and the idea is that you're deferring it until the medical system is less overwhelmed, you might actually be deferring it to a point where it is no longer legally permissible for you to exercise this right. And so in that sense, you know, is an abortion like any of these other kinds of procedures that have been held over? Or is there something different because of the legal landscape in which it is actually more highly regulated than other kinds of medical procedures? I would just flag one other thing, which is that Judge Dennis, who dissented from this Fifth Circuit opinion, just putting the district court's order on hold, said that he believed

that the governor's order in Texas already exempted most abortion procedures, which don't require the use of personal protective equipment or other kinds of hospital facilities or materials. Medical abortion. Well, I don't think surgical abortion requires personal protective equipment. Certainly in the routine case, it would not. And so either way, I think the executive order by its term says we're going to exempt procedures that wouldn't deplete hospital capacity or resources. And that is many, if not most abortions, I think both medical and surgical. And so I think he thinks the order itself would exempt a lot of procedures.

Well, so that's a good question. Because, you know, right now, standard obstetric care is being undertaken using PPE. So I have a number of friends who are OBGYNs who are staffing maternity wings here in California, and they're all sort of being prepped to deal with COVID patients as this gets more and more extensive. And I mean, the idea is that it's not just does the patient present with COVID, but the prospect that the physician may be asymptomatic, but nonetheless a carrier. And so almost everything is happening with PPE at this point. So the idea that abortion might be exempted

because it doesn't require PPE, I think almost every surgical procedure would have to have PPE at this point. Maybe I'm wrong on that, but it seems like it's going in that direction. And if that's the case, it's really only medication abortion that would be exempt. Okay, well, so that's a great point. And I think it's right that in an ideal world with unlimited access to that sort of equipment, you're right, any patient doctor encounter should involve like full equipment, maybe on both sides of the encounter. But obviously, we're in a very different world in which there's all these shortages. But it's a great point. And you're right, obviously, asymptomatic transmission is a huge issue. And certainly as to surgical abortions, there's close contact between physicians and patients. Medical abortions, of course, are quite different.

We're just talking about the prescription and dispensing of medication. And so certainly that shouldn't present the same kinds of issues. It is actually really interesting, though, that COVID-19 is raising a whole slew of constitutional questions that I think are really interesting and new and novel. So there are a number of states, Rhode Island most famously comes to mind, that are restricting or trying to quarantine migrants from other states, as you will. And so that, you know, may raise questions about the right to travel. We've talked about, you know, whether states under these conditions can exercise their police power to quarantine or require self-quarantine of those from other states. Those are interesting questions, executive power questions. I mean, you could write

an entire constitutional law course using nothing but COVID-19 hypotheticals and now this abortion question. So I think it's actually a really fascinating time for con law professors. I totally agree. I wonder whether in the next few weeks or months, we should do a COVID and the law or COVID and the Constitution, sort of special bonus episode. I too have been like thinking through all these questions. There's a huge number. There are, you know, these religious liberty objections, the gatherings prohibitions that are put into effect, the election law consequences, huge election law consequences. Huge election law questions around primaries and obviously

the approaching November general election. Yeah, should we do that? Let's do it. We should do it. Let's do that. That would be fun. I'd be down. Okay, we definitely have to be quarantined

while we're doing it and in PPE just to give it some verisimilitude. No, not in PPE. We can't use up the PPE that's out there. It would be homemade PPE. Okay, that would be fine. Maybe like we could have like use RBG fabric or something and make masks out of it. We could all get black trash bags and then put like a jabot on it.

That would be our RBG PPE. She should be in PPE at all times. And I will find some in my house and send it to you Justice Ginsburg if you do not have any please let me know if anyone is offended by this entire conversation we're really sorry but if like you have to find some humor in what is literally a horrifying and terrifying situation so I'm just gonna stick with my RBG PPE. If you don't like it, just tune out right now. OK, thanks. Amen. So maybe one last piece of breaking news, which is a few weeks old at this point. But but there's been a development in one of the big cases on the court's docket for April, and that is the so-called faithless elector cases.

So those cases involve presidential electors. So those are the people who actually cast their votes for president. And those electors in the 2016 election refused to cast their votes for the popular vote winner in their respective states of Washington and Colorado. And so they were penalized for those refusals. In Colorado, the would-be faithless electors were removed from their positions. And in Washington state, they were fined. And in both cases, they filed suits basically claiming that the Constitution guarantees these electors the right to cast their votes independently and without interference or sanction from the state. So that's the case. But there is this slight wrinkle that has developed as the case is just about a month or so from its at least scheduled argument. So what is that development, Melissa? Well, it turns out that one of the Colorado electors, Polly Baca, is an old friend of Justice Sotomayor's.

Dun, dun, dun. So I literally have been racking my brain trying to figure out what the relationship between these two women is. And so here are some plausible theories, I think. So one, Polly Baca is a big, huge deal in Colorado politics. And Justice Sotomayor happens to be the circuit justice for the 10th Circuit, which includes Colorado. So maybe they have become friendly as Justice Sotomayor has done her duties as circuit justice. And she actually has gone out to Colorado a fair amount to participate in circuit events there.

So that might be one option. But I do think that their relationship probably goes beyond just this particular serendipitous geographical tie. So it is also the case that Pali Baca is a big deal in La Raza and other organizations that work toward advancing Latinx civil rights. And so recall that prior to her tenure on the court and as a judge, Justice Sotomayor was a member of the board of PRLDF, Pearl Def, the Puerto Rican Legal Defense Fund. And so it might be the case that her path and Polly Baca's path crossed in that context as well. But I'm actually fascinated. I mean, this is sort of, this could be like a kind of behind the music, Justice Sotomayor, Polly Baca, they were friends and then they were they were friendly in their different milieus.

And then it all came crashing down as Polly Baca became a faithless elector or something. And wouldn't it be the best behind the music? So it actually goes back. I will say I did a little digging. It goes back. They are definitely old, old friends. So Baca was quoted in a couple of articles around Justice Sotomayor's 2009 nomination. Apparently, at least once, remember Justice Sotomayor, or, you know, then Judge Sotomayor broke her ankle running for a plane from LaGuardia to DC during like the prep for her confirmation hearings. And at one point, Polly Baca, like took the justices dry cleaning in for her because she was like, you know, trying to minimize unnecessary movement. And she was, I think, actually in the Senate for a confirmation

hearing. So they really are old friends. So I think there are probably some kind of borderline recusal calls that the justices have to make. But I think in this case, I think they were tight. So this was obviously the correct decision. What's interesting about this, though, is that if it had been discovered earlier, I am, you know, because there were two these two cases now that are going to be argued separately. And if this had been discovered earlier, I'm almost sure that the cert grant would have come only in the case in which there was no recusal. And then that other one would have been held pending the resolution of the other case. So now there's going to be double the amount of arguments. And in some ways, it shows a little bit of the silliness of recusal, because obviously, Justice Sotomayor is going to weigh in on the ultimate merits of the legal issue.

It's just she's not going to be on the vote. I mean, and then what happens if it's split floor four in one case and not in the other? I mean, that doesn't make sense either. Well, how do you think it came up? I mean, she was just like parsing through the breeze. It's like, oh, Polly, what? And then she calls up the clerk of the court. We've got a problem. Baca is the named plaintiff, but there's three electors in the Colorado case, one of whom is a Baca unrelated to Polly Baca. So I presume she saw, I can't remember his first name, maybe Michael Baca and did not look at the other plaintiffs in the case. And yeah, but I'm also really curious about how it did ultimately come to light because Polly is in the merits briefs.

I kind of wonder if one, you know, one of the parties wrote a letter to the clerk's office to inform the clerk's office of it. It didn't make it onto the docket because it's not, you know, not everything that goes to the clerk's office makes it onto the docket. And then the justice was advised about what happened and she chose to recuse. But think about this friendship, right? So, I mean, maybe they're just not in constant touch with each other because I imagine if we were really tight, I would tell my friend, by the way, I'm in a big Supreme Court case.

Are you on the Supreme Court? Guess what? I'm going to see you at work, right? Or you don't because you think you're not supposed to mention it. I bet it's the, Polly Baca is not a lawyer. So it may very well be the case that she thought she could not mention or wasn't supposed to mention it.

It's also not unheard of for people who are involved in impact litigation as plaintiffs, even as named plaintiffs, to not be super involved in the day to day of the case. And I would hope usually that people would know if their cases are up on appeal or in the Supreme Court. But I don't think that's always the case, to be honest. Well, that would have been a huge surprise if Polly Baca showed up for oral argument. Anyway, yeah, so to be determined, so I guess the cases will be separated. And they have, you know, the merits issues are the same, but there are some standing issues in Colorado that actually

aren't really present in Washington. And so, so I think it's right that, you know, you have the possibility of a tie in Colorado, but the Washington case presumably will be resolved by the full court. But the big question, of course, is when and will it be before November? I mean, I presume it'll be argued before November, but decided before November, because in a close electoral college contest, a handful of defecting electors could definitely switch the outcome. And so it matters a lot if there's a constitutionally protected right these electors possess to vote their consciences. And the court may or may not decide that before November. Does it have to be November? Because I recall the last election, like don't the electors have to actually sort of give their final tallies sometime in January or like late December?

So it might be the case that there's some wiggle room. So I think they meet in, there are a bunch of different dates that the Electoral Count Act sets forth. I think they actually meet and cast their votes in December. So you're right. It's not, you know, it's not election day necessarily, but it would need to be resolved. And I presume if they heard the argument and all of us and as a close, you know, Electoral College vote, they would expedite resolution of the case. But I don't think anyone wants to be in a position in which the Supreme Court is making outcome determinative rulings like the days before the electors gather

to actually cast their votes. So much better for everyone if they hear this case somehow, you know, this spring or summer. And this somehow point, it's not like it would be that difficult. I mean, first of all, they could always decide on the briefs and even otherwise, like it's not lots of courts are figuring out how to do this. So they could do it too. The last piece of news that we have from this week is that on Monday, March 30th, the Supreme Court granted cert in another case about Bivens claims. And I'm sure that we'll discuss this before it's actually heard. But basically, the case is about the interaction between the Federal Tort Claims Act and Bivens

claims and whether a judgment in favor of the United States in a Federal Tort Claims Act case bars a Bivens claim against federal officers. And there's a particular statutory judgment bar that may or may not apply. But I think that's a case that's super interesting that we're going to go into in more depth, probably next fall. Let's turn to the opinions. And it is worth noting that although the Supreme Court is formally closed to the public and oral arguments have been deferred until after this pandemic is under control, the work of the court has continued apace and they have continued to churn out opinions, including opinions in some of the cases that we discussed earlier in the term. And we wanted to flag some of the dispositions of those cases for all of you.

So Jamie's going to kick it off. Yeah. And I'll just note that, you know, you're right that they've been churning out these opinions. The court issued 15 opinions in February and March. None of those are really the most hotly anticipated opinions from the term. We're going to have to wait longer on some of those. And I also think it's notable that the chief still has not issued a single majority opinion yet for this term.

Everyone else has usually two or three opinions. The chief doesn't have one, which means which is kind of scary. Well, or not surprising because he was busy presiding over impeachment and having a birthday. And this is true, because he's speedy, usually. And so this is an odd lag for him. But I do think it's probably attributable to his busy calendar in the month of January. That's a good point. So I think Kate, you've got the first opinion that we're going to talk about, Hernandez versus Mesa. Okay. And I will just flag before we do that, that in terms of these big questions about what the court is going to hear and when, we're taping this episode on Tuesday, March 31st. And today was supposed to be a really big day for

the court, which is because the court was scheduled to hear arguments about the president's power to block congressional committees and the Manhattan DA from accessing financial records in the possession of third parties that contained information about his taxes and finances more generally. So we are all, I think, really waiting in anticipation to see whether the court, in addition to the faithless electors case, is going to find a way to hear that case and decide that case before November. But stay tuned. Okay, in opinions. So Hernandez versus Mesa is the first case we were going to talk about. And this is a case we've discussed at least once, and I think maybe a couple of times before, we should say that Leah

was one of the lawyers for the petitioners in the case. And so this case involved the cross-border killing of 15-year-old Sergio Hernandez, who was shot while on the Mexican side of the U.S.-Mexico border by Border Patrol agent Jesus Mesa, who was standing on the U.S. side. So Hernandez's family brought suit under Bivens, which is a 1971 Supreme Court case that allows, under some circumstances, for private damages suits against federal officials for violations of constitutional rights. So the case has actually been up to the court once before. In 2017, the court sent the case back to the Fifth Circuit for reconsideration in light of its decision in Ziegler v. Abbasi, which is another Bivens case. And there, the court held that Bivens is not to be extended to a new

context where there are special factors counseling hesitation and where Congress has not affirmatively authorized suit. So after the remand, the Fifth Circuit found there was no Bivens remedy under the circumstances of this case and comes back before the court. And here in a 5-4 opinion authored by Justice Alito and joined by the Chief Justice, Thomas, Gorsuch, and Kavanaugh, the court affirmed the Fifth Circuit. So it did acknowledge that the case was a tragic one, which Justice Alito actually doesn't necessarily typically do, even in a case with facts like this one. So I think it does speak to just how outrageous the facts are, but ultimately ends up concluding, the opinion does, that the family has Bivens action in a context like this one. And that under Ziegler, a number of factors, including the fact that there are these foreign policy and national security dimensions of a dispute like this, which involves a border and a foreign sovereign. So all those kinds of considerations require the court to stay its hand and to leave to Congress rather than the courts the decision whether to allow plaintiffs to seek money damages from federal officials under circumstances like these. So I will say the opinions tone is very critical of Bivens.

I would say even outright contemptuous of that. It's bred and authored. It's a very early burger court, but it has a sort of war in court feel to it, a product of the bad old days in which courts were open to finding causes of action against federal officials who act in violation of law. And it sort of reiterates something it said in Siglar, which is that the expansion of Bivens is a disfavored judicial activity. And even goes so far as to say if the court had before it today, it's Bivens cases, you know, Bivens, and then there's two cases extending Bivens to new context, that it probably would not have come out the same way as it did in those cases. But it does, you know, significantly decline to actually overrule Bivens, even if it's a kind of grudging, you know, refusal to overrule. And it is, I think, noteworthy that Thomas and Gorsuch separately concur to urge the court to go all the way and overrule Bivens, but presumably, only the two of them would have gone that far. So that is maybe one silver lining of this loss, which is that Bivens does live to fight another day and that

only two justices appear ready to overrule it. And then the other thing I'll say in terms of silver linings is that the court does make clear that Congress could create causes of action in cases like this if it wanted to. And so, you know, maybe there's a world in which down the road, a differently composed Congress and White House do choose to do something like that. There's a very forceful Ginsburg dissent. She's obviously joined by Breyer and Sotomayor and Kagan, and she would have allowed the lawsuit to go forward. She says, you know, rogue conduct by federal officials falls within a familiar Bivens setting. This is what Bivens is about. There is no other conceivable remedy for this family. And in a case like this, it is Bivens or nothing. And she ends by saying, or she says near the end, I resist the conclusion that nothing is the answer required in this case. I have to tell you, Kate, I read the opinion the same way that you did. And actually, I think maybe six, seven pages through, I was thinking, oh, they're overturning Bivens. They're definitely overturning Bivens. And then you kind of get to, and we're just not going to extend it. And I was almost,

you know, surprised at that. It is a kind of standard Roberts Court play, right? So, I mean, you kind of hobble the decision to the point where it's barely standing. And then you sort of say that you're overruling it. And when people raise the human cry, you say, but we gave you all this notice that it was standing on one leg. I mean, this is exactly what happened with Janice. You know, there was Friedrich sort of suggesting that Abood was problematic. Harris versus Quinn did the same kind of thing. And then finally, you get to Janice, and they actually sort of say, like, we gave you all of these clues that we were not okay with Abood, and now we're just overruling it. So this, to me, is sort of, you know, expected and a kind of standard play. Yeah. And Jamie, I think you and Leah made this point in the episode that you two did together recently that, you know, we may well see the court following a similar trajectory in some of its

kind of deconstructing of some of these kind of big administrative law cases and doctrines, sort of on the path to maybe overruling Chevronron or maybe just chipping away at it. And obviously, we have talked on the show about Roe versus Wade and Planned Parenthood versus Casey. And so this kind of, you know, stealth overruling or death by 1000 cuts is I think you're totally right, Melissa, kind of classic Roberts court move. And yet, I think at least for now for individuals who, you know, would be deprived of least for now, for individuals who, you know, would be deprived of any kind of remedy for at least, you know, some of these kinds of, you know, search and seizure violations, you know, or, you know, unauthorized by law, searches and seizures of

the kind of classic Bivens variety, there remains some prospect of remedy where overruling Bivens would obviously remove that prospect. And so I don't think it's an insignificant move to retain Bivens, but certainly it may just be that they sort of dodge a lot of the kind of potential public blowback of a forthright overruling and achieve largely the same result in 95% of cases. So I think it's important not to celebrate that Bivens lives to fight another day, but I do think that it does matter. Kate, do you think that litigants are going to be deterred from making a Bivens claim just because the likelihood that it would be appealed and if it gets to the court, it would then be overruled, would be just such a deterrent? If you were sort of a prospectively thinking lawyer, I think I'd be worried about urging someone to make a blip in his claim under these circumstances. So maybe it actually accomplishes what it wants

without actually overruling it. Totally possible. I mean, I think that certainly to bring anything, you know, and it just depends at what level of generality you kind of define the claim. Obviously, what Ginsburg says is, you know, the unauthorized, you know, seizure, this is like a killing of an individual who poses no imminent threat is definitionally an unreasonable seizure. And so that's what Bivens itself is about. But, you know, this was a warrantless entry into a house and arrest and search, at least in the Bivens case itself. And so I think that in that category of cases, I don't think you'd be deterred from bringing Bivens claims, but anything outside of those

very, you know very narrow factual circumstances. Yes, I think you're right. I suspect you that if you're an attorney paid on a contingency fee, which is going to be the case for a lot of these types of cases, I would suspect you'd be deterred from representing someone, which would make it very difficult for them to do so. Maybe organizations wouldn't have, you know, they don't have the same limitations. So that might be different. But but I definitely agree with you. There was one other thing I noticed in Justice Alito's opinion, he had this footnote, footnote three, that criticized the idea of a third party, meaning the court, from taking sides in a dispute between two countries. And the footnote suggests that

finding a Bivens remedy here would mean that the court is injecting itself into the relations between Mexico and the United States. And I'm curious for your views on this, because in my view, that footnote seemed almost kind of willfully either naive or obtuse. I mean, either way, the court is injecting itself. It's not just injecting itself if it rules in favor of the boy's mother. I think you're right. All right. So our next case is Collar v. Kansas. So this case is about the insanity defense. The background to it, and we've covered it a bit in the past, is that in 2007, Kansas by statute passed a statute that says that it's a defense to a criminal conviction if a defendant lacked the culpable mental state required, the mens rea, to commit the crime.

But the statute also says that mental disease or defect is not otherwise a defense. And so according to the petitioner in this case, who is a capital defendant, he's on death row, what this statute means is that Kansas basically abolished the insanity defense. Because even if he had the culpable mental state required to commit the crime, so say that he knowingly or willfully killed somebody, the insanity defense would not prevent his conviction if he had a mental illness that meant he couldn't appreciate the immorality of his conduct. And so an example might be if you have someone who knowingly killed somebody else, but he did so because he had these delusions that God

was telling him he was supposed to kill the other person. In basically every other state, he would be not guilty by reason of insanity, but in Kansas, he wouldn't because he still has the requisite culpable mental state. So this case had a bit of an unusual split. So Justice Kagan authored the majority opinion and she was joined by the five conservative justices and Justice Breyer, who is not always great for criminal defendants, I'll say. He wrote the dissent joined by Justice Ginsburg and Justice Sotomayor. Justice Kagan basically said that due process obviously recognizes an insanity defense because there's a long historical tradition from it. But it doesn't require that insanity defense to take any particular form because there was no historical consensus about what the insanity defense required. Insanity is based on kind of ever-changing science and history. And so it's a reasonable policy choice for each state to decide where to draw the line.

So according to Justice Kagan, Kansas didn't actually abolish the insanity defense at all. It just tailored it. It still takes account of mental illness, but it just does so in a particular way. And it does so at sentencing, and it does so in certain circumstances at the conviction stage. And what I noticed is that this the position that Justice Kagan ultimately took basically adopted the solicitor general's argument. Actually, Elizabeth Prelogger, who argued for the SG's office at oral argument, it was almost verbatim kind of what the what her theory was. Justice Breyer, he generally agreed with the concept that there can be a lot of leeway in defining criminal statutes and how insanity is defined. But he said that Kansas didn't just define insanity. It eliminated the core of the defense, which is about

understanding the immorality of your conduct. And so he started his opinion with this hypothetical that was the same one he used at the argument. He said, imagine you have two prosecutions. In the first one, you have a defendant who shot and killed another person because due to mental illness, he thought that the other person was a dog. Prosecution number two, you've got a defendant who shot and killed another person because due to mental illness, he thought that a dog ordered him to kill the other person in most states the insanity defense would apply to both but in kansas only the first one would and he said that's completely contrary to the long historical tradition so this was another case

where there was you know deep dive into 18th century and 19th century cases and disagreement about what those cases mean. And Melissa, you and I have talked about this before, you know, that one of the longstanding challenges of a lot of cases is when you read all, you know, this history of 200-year-old cases, not everyone agrees about what they say. And so when you're kind of hinging your analysis on that and you can't even agree what the cases mean, you're not going to come to much consensus on what they indicate for the future. I also think what you're seeing here in Collar is just how deeply unsympathetic this defendant was. I mean, this was an individual who killed his entire family. And I just wonder, under a different set of factual circumstances,

a similar kind of issue might have garnered a couple of extra votes. I mean, he's just a terribly unsympathetic defendant, I think. I think you're right. And Justice Kagan actually said something at the argument that was along the lines of, I mean, basically, you know, your client is clearly not going to get this defense, even if we would say that he is entitled to, you know, present evidence to the jury. You didn't have any evidence. This is, you know, these are horribly unsympathetic facts. I mean, he killed his whole family, except he allowed his son to get away. And then the next day he turned himself in and said, I went and killed my family. And he didn't really have any strong evidence of a

particular mental defect. So I think it could be a bad facts make bad law situation. I also agree with you that I was a little, you know, Justice Kagan's, her majority opinion has been pretty hotly criticized, including by Professor Carissa Bernhessig at UNC, who suggested in a Slade opinion that the justices, her majority was kind of intellectually dishonest when it said that Kansas didn't abolish the insanity defense. And I wouldn't go that far. But I would say, you know, I usually see in Justice Kagan's opinions, kind of her opinions destroy overly formalistic analyses. And I felt like what I saw in this opinion was one of those more formalistic analyses in it. So I was a little surprised.

And I thought that Justice Breyer did a pretty good job of kind of unpacking that. And one example of that is exactly what you were talking about with mens rea. So Justice Kagan says that many of the historical cases say that what really matters for insanity is the inability to form mens rea rather than moral blameworthiness. And Justice Breyer said, well, yeah, you're right, but you're interpreting the term mens rea based on what we think that term means today, which is a very narrow, very technical definition. 200 years ago, mens rea incorporated the notion of blameworthiness. So you're using the right words, but they didn't mean the same thing then as they do now. And that's the kind of thing I would usually see in a Justice Kagan opinion, really dissecting a majority, but it's kind of the shoes on the other foot here.

Also, just to strike a crass legal realist note for one moment, I don't think Justice Kagan wants every decision the court issues to be a 5-4 decision in which the five conservatives are on one side and the four liberals are on the other. Now, for what it's worth, I don't feel that steeped in the case. I found her majority pretty convincing, but it is another. It comes down to framing, right? She says, of course, Kansas has to give some effect to this prohibition, but it is just shifting when and how these claims are raised as opposed to eliminating them altogether. And that may be intellectually dishonest. I don't feel equipped to really evaluate it. But I do think that there probably is some marginal benefit that she sees in occasionally crossing over to join her more conservative colleagues.

Build a bridge. And maybe it means that she's going to get some of that, you know, build some political capital that will help out on future cases. Right. I mean, again, and I don't think that any of it, you know, happens in any of those kinds of transactional terms. But I do think atmospherically, it probably is something that they are aware of as they decide these cases. Well, there was no need to build a bridge in the next case,

Comcast versus the National Association of African American Media Owners. This is the case that we talked about before that I affectionately call the Byron Allen case. So this is a situation where Entertainment Studios Network, which is owned by Byron Allen case. So this is a situation where Entertainment Studios Network, which is owned by Byron Allen, an African American media entrepreneur, and the National Association of African American Owned Media filed suit against Comcast in federal court in California, alleging that Comcast's failure to enter into a carriage contract with ESN violated Section 1981, which is a Reconstruction-era federal statute that protects against racial discrimination in the context of contracting. And specifically, the

plaintiffs here argued that Comcast's decision was influenced, at least in part, by racial animus toward ESN's African-American ownership. The case never really got beyond the pleading stage because the federal district court dismissed the original complaint and two separate amended complaint for failure to state a claim under Section 1981. But on appeal, the Ninth Circuit reversed, allowing the lawsuit to go forward on the ground that the plaintiffs needed only to show that race was, quote unquote, one motivating factor in Comcast's decision not to enter into a contract with ESN. And so the question teed up for the court was whether, in fact, the Ninth Circuit was correct

that you could have race as a motivating cause, but not necessarily the but-for cause of the decision not to enter a contract, or does Section 1981 actually require but for causation? And in a unanimous opinion authored by Justice Gorsuch, the court came to the conclusion that the plain language of Section 1981, as well as its own jurisprudence, requires a but for causal standard for these claims. And so the court engaged in some really interesting intratextual analysis. So they look at the language of Section 1981 and then the provision of the Civil Rights Act of 1866 that follows 1981. And that provision bars racial discrimination in the sale and rental of property. And the court has required that the cause of action when property rights are denied has to happen because of color. So that

second subsequent section requires but for causation, and it seems clear that to the court that Section 1981 does as well. The plaintiffs here had really been trying to import Title VII's motivating factor causation test into 1981. And the argument was that like Title VII, which is also a statute that sort of deals with the decision to enter into employment contracts, for example, Section 1981 was broadly intended to remedy racial discrimination like Title VII. And so just as Title VII offers this motivating factor, mixed motive kind of analysis, Section 1981 should as well. But Justice Gorsuch really rejected this out of hand, saying that there was not a shred of evidence that Congress meant to import the same standard to 1981. And indeed, that when Congress added the motivating factor test to Title VII in 1991, it amended Section 1981,

but did not include the motivating factor test there as well. And so the court just sort of chalks this up to a sort of straightforward textual analysis. It remands this case back to the Ninth Circuit to review the plaintiff's complaint in light of the but-for causation rule. Interestingly, Justice Ginsburg filed a separate concurring opinion here, not to dispute the reasoning of the majority's holding, but to underline a separate point. She agreed with her colleagues that but-for causation was the appropriate pleading standard for Section 1981, but she wrote separately to reject Comcast's argument, an argument that the court declined to address in the opinion, that as long as impermissible

discrimination was not a factor in the ultimate decision to decline to enter into a contract. And such a view, Justice Ginsburg said, could not be squared with Section 1981. And that's relevant to this case, because in returning the case to the Ninth Circuit, the plaintiffs have contended in their complaint that Comcast required them to perform a series of tasks that serve no purpose but wasted hundreds of thousands of dollars. And under the logic of Ginsburg's concurrence, if race accounted for Comcast's conduct in demanding those tasks, it should not, it, Comcast, should not escape liability for the injuries inflicted during that part of the contract formation process. Melissa, that seems like, I was just going to mention, that seems like such a critical dissent. Or was it a concurrence? Was it a concurrence?

It's a concurrence. Yeah, such a, because I, it seems like that could actually be the more critical question in this case. And I could see this, this case going up to the court and back a couple of times before it's resolved. And I kind of wonder whether this concurrence was a kind of little elbow to the plaintiffs to say, like, hey, guys, don't worry. You can file another cert petition later. And I'm going to take it real seriously if you do so. Well, so I think that's definitely correct. So recall that the plaintiff's lawyer

before the court was Erwin Chemerinsky, who's the dean of Berkeley Law. I'm certain that he probably read that concurrence and tied a knot in his mental handkerchief to see later, because that's definitely, I think, the bigger part of this opinion. Again, this case got sort of kicked around at a really early stage of the pleadings, the Rule 12b-6 motion. So very early on. And the whole question is whether they fail to state a claim. The real action, I think, is actually in the record evidence about what this whole contract negotiation effort was like. And maybe that will be something where the plaintiffs can actually pursue and have a more colorable claim. But I will say that I think it was hard for the public

at large to appreciate the high stakes nature of this case. One, because it occurred at such an early stage in the litigation. Two, because I think Byron Allen is not an especially good plaintiff as a civil rights plaintiff. I mean, he's a multimillionaire. The real people who are going to bear the brunt of this shift to but for causation under Section 1981 are going to be working folks, maybe working folks who don't qualify as employees under Title VII and only have Section 1981 as an avenue to pursue their claims, this is a much higher standard than Title VII's mixed motive motivating factor standard. So that's a problem. I also think this case does not bode well for Babb v. Wilkie, which was that Age Discrimination and Employment Act claim that we talked about earlier, where there is a similar

question whether but-for causation is required. And I think it sort of does not bode well more generally to anti-discrimination legislation on the whole. It seems like but-for causation is being read into a lot of these statutes. There is one silver lining, though, and that comes from, I think, the court's dogged, dogged interest in a textual reading of this statute. And I think if they are really being true textualists, as Justice Gorsuch says he is, and as he does in this opinion, I think this looks like a perhaps silver lining that augers well for the Bostock trio of Title VII cases going forward. So maybe that's a silver lining.

But, you know, the pessimist in me thinks that they can be inconsistent all over the board here. But that's if you're truly being a textualist, that's where I think that would take you. I was gonna flag one thing, which is, you know, it does purport to be this textualist opinion, but it doesn't it, you know, I think the contracting piece of Section 1981 is the focus. But there's the rest of the language, which is as enjoyed by white citizens. And I wanted to flag a really interesting forthcoming law review article by Nancy Leong. I saw her workshop at a few weeks ago, before, you know, in the before time, as we now refer to it, when like things were normal, and law school workshops happened. But it's a totally fascinating

piece. And a it sort of flags the sort of the relatively unique status of 81 and 82 and even identifying whiteness and naming white citizens. There's just not a lot in the U.S. Code. There are a few other examples, but very few, but also sort of pressing on this idea of enjoyment, right? In some ways, like most civil rights laws are kind of prohibitions, right, on discrimination because of or on account of race. But here here this guarantee of rights enjoyed by white citizens is in some ways like the text reads as more expansive um and capacious potentially than a prohibition on a set of acts right so and it also kind of requires some you know kind of grappling with this idea of enjoyment and what is the full range of contractual rights enjoyed by

white citizens and and it certainly would seem to Ginsburg's point to mean much more than just this kind of point of sale or something transaction and, you know, to sort of cast back in time significantly and maybe have all kinds of other qualitative dimensions as well. But it is interesting for a purported textualist opinion. It doesn't actually talk at all about, you know, half of the text of the statute at issue. Now, I think that's true. That's true. It really sort of focuses, I think the real textualist meat here is this kind of intra-textualism that Gorsuch is doing between Section 1981 and subsequent sections of the Civil Rights Act. The amendments and the 91 amendments, right?

The sort of negative implication of the failure to amend. And yes, I think that's right. But even as to the text of the statute itself, it doesn't do much with it. No. The other thing I wanted to flag for the kind of civ pro nerds is that, you know, this was, as you mentioned, Melissa, a case about the pleading stage. And I can actually see this but for causation standard being a much bigger deal at the evidentiary stage than at the pleading stage, because at the pleading stage, I don't know that it's going to be that much harder to allege but-for causation than motivating factor causation. If you have a variety of indicia of disparate treatment during the process or whenever, and then you have an adverse outcome, I think that in many instances, courts will reasonably infer but-for causation if it's

alleged in the complaint. It seems to me like it's a more difficult evidentiary to prove it, burden to prove that this actually was the but-for cause rather than just something that potentially entered that motivated the actions of the other contracting party that seems more difficult. Well, that was the point that the NAACP Legal Defense Fund

and the Lawyers Committee kept making. I mean, this is really about access to the courts for civil rights plaintiffs. I mean, like to kick you out of court at the pleading stage because you're not able to marshal the kind of evidence that shows that race was the entire cause of the adverse decision is really difficult. And, you know, maybe that's the point. I don't know. But I think it's really interesting that the same interests and but for causation at these early stages of litigation are also becoming issues in these other anti-discrimination statutes like the one at issue in Babb v. Wilkie. I think let's turn now to just a very quick overview, just a couple

of beats each on a handful of other cases that have come down since we last had a chance to do an opinion overview. So just a quick overview of Kansas v. Garcia, which is an immigration case involving preemption and I-9 form. So basically the case asked whether state identity theft statutes were preempted by federal law and specifically by the 1986 Immigration Reform and Control Act. And that's a law that creates the federal employment verification process and also the I-9 form that people are familiar with. And there the court held 5-4 that these Kansas statutes under which respondents were convicted were not preempted by federal law. So that's a 5-4 decision authored by Alito. Interestingly, there's a partial dissent by Justice Breyer for himself and Justices Ginsburg, Kagan, and Sotomayor.

Interestingly, the whole court agreed there was no express preemption of state law by this federal immigration law, but the court divided 5-4 on whether there was implied preemption. One thing that's kind of interesting to note is that Arizona versus United States is an important previous immigration preemption case. And there the court, people will remember, found that this draconian Arizona law that purported to regulate employment in the state was mostly preempted by federal law. And here the court arguably retreats from these signals that it sent in that case. And that was a Kennedy opinion, I should say. But those signals that it would allow very little state regulation of

immigration and employment and its intersection with immigration. Here, of course, the court is allowing more latitude for states, although not expressly disavowing anything in Arizona. So that's just a beat on that one. Although it's an interesting case, and we could say more, but time is short. The next case in the lightning round of this episode is Olguin Hernandez versus United States. And this was a case about what a criminal defendant needs to do to preserve a claim of error during sentencing. Is he required to formally object that his sentence was substantively unreasonable after

the judge sentenced him or is just arguing for a shorter sentence at the outset enough. The court ruled in favor of the criminal defendant unanimously, holding that criminal defendants can preserve a claim of error just by arguing for a shorter sentence. And the one note here is that this case was won by Kendall Turner, who was arguing her first Supreme Court case. She's also one of the founding members of Law Clerks for Workplace Accountability, which has worked to eradicate harassment in the judiciary. And I thought it was kind of sweet that the unanimous opinion was written

by her own justice, Justice Breyer. So next up is McKinney versus Arizona, which holds that resentencings can be done by judges rather than juries. And this was a decision authored by Justice Kavanaugh with RBG in dissent. The majority opinion really doubles down on the court's 1990 decision in Clemens versus Mississippi, where the justices ruled that the Mississippi Supreme Court could reweigh the aggregating factors against the mitigating factors after the state court

determined that one of the aggravating factors was too vague. Here, although in McKinney's case, there was mitigating factors and Clemens involved aggravating factors, the court said the distinction was of no moment and that the analysis in Clemens hinged on its assessment of the appellate's court's ability to properly weigh aggravating and mitigating evidence. And so there you have it, doubling down on Clemens and judges, not juries, can weigh these things against each other. The next case is Intel versus Sulima. This was an ERISA case about ERISA's three-year statute of limitations. It applies when a plaintiff has actual knowledge of an ERISA breach or violation. What Intel had argued in this case is that the actual knowledge standard

is satisfied when an ERISA plan provides disclosures that the statute or that DOL regulations require plans to provide that contains all the facts that are needed for a plaintiff to know that they have a claim. The plaintiff had argued that actual knowledge means you have to actually remember reading them. you have to actually remember reading them you have to say yes I saw that disclosure and I saw those facts the court agreed with the plaintiff and basically said actual knowledge means actual knowledge it was a unanimous opinion written by Justice Alito who is not always known for his textual analysis but he provided it here and so I think think for the next decade, courts will disagree about

what exactly a plaintiff has to know and whether the subjective knowledge standard will impact class certification, which is a huge deal in ERISA cases. And we were going to flag Davis versus United States, which was actually a decision that the court issued without oral argument and a rare reversal in favor of a criminal defendant. So basically, on the March 23rd orders list, in which the court lists cases that it's going to grant and deny certain, it also issued a short per curiam, so no identified author, opinion reversing a Fifth Circuit opinion. So basically, the Court of Appeals in the Fifth Circuit, well, so I should say most courts of appeals conduct what's called plain error review if arguments aren't preserved

below. So if an error affects substantial rights, it may still be considered on appeal, even if not raised below. The Fifth Circuit, by contrast, used a rule in which if a party failed to preserve a factual argument below, it could not be reviewed at all on appeal. So this was a criminal defendant who argued that there was a factual error in that he was sentenced to consecutive rather than concurrent sentences, didn't raise that below, raised it before the fifth and was told that he just couldn't have the argument considered at all, even on plain error review. And the Supreme Court said no, you know, in kind of quite understated, but pretty harsh language, informed the Fifth Circuit that there's no legal basis for its practice of declining to review certain unpreserved factual arguments for plain error. So a rare smackdown of the Fifth as opposed to, say, the Ninth Circuit. Cooper, which is a case about copyright law and the cases about whether Congress had the

constitutional authority to strip the states of their sovereign immunity from copyright infringement suits in a copyright statute that Congress passed. I'll just briefly mention that the facts of this case involved Blackbeard's ship, the Queen Anne's Revenge. Yes. And there were no, I mean, there were no puns or anything. So I was really disappointed when I listened to the argument. But basically, the court said that, hey, we have

already held that Congress lacked authority to waive state sovereign immunity in patent suits. And the way that courts interpret patent statutes, it usually interprets copyright and trademark and other types of soft IP statutes the same way. So this is a Justice Kagan opinion. And basically, the entire opinion says stare decisis, stare decisis, stare decisis. So what we know is that stare decisis is not for suckers when Justice Kagan is writing. Justice Thomas wrote a separate concurrence just to make clear that he thinks that stare decisis is for suckers and that there's no need to have some special justification to overrule precedent. I'm just so disappointed

that no one took the opportunity to make some pirate SCOTUS stuff happen. This was such a good case for pirate SCOTUS and they really missed the boat, no pun intended. Maybe this is why the court does not have video of its arguments, because if so, there would have been so many memes with pirate patches and pirate hats and everything. But that was not present here. I will mention that that Ryan Park was also arguing his first Supreme Court case. And it was great for him to get a win. But his former boss, Justice Ginsburg, joined a dissent against him, which can never be that much fun. OK, and an actual last thing I will flag in the lightning round is that as opinions come out, I just wanted to mention this very cool project called Oral Argument 2.0, which is something that's the brainchild of Cornell Law School, Sherry Kolb and Cornell 3L, Jareb Gleckl. And so basically, they've asked a whole bunch of advocates and law professors to choose a recently argued but not yet decided case and identify a few questions or lines of inquiry

or argument that they would have handled differently. And with the luxury of time to kind of write out some answers that, you know, might be interesting to the general public, might even be of some use to the justices or their law clerks as they're wrestling with these cases. Anyway, so it is hosted actually on the OYE website, which is where we get the oral audio clips that we use on the show. So the URL is argument2.oyez.org. And I think our listeners might enjoy checking it out. So what else might you enjoy checking out, listeners? We know that so many of you are sheltering in place right now or are quarantined and we are there with you.

We are also sheltering in place and we urge you to keep it up because we are all doing our part to flatten the curve. But how can you flatten the curve while also sating your thirst for more SCOTUS content? Obviously, you can listen to us, but when that fails and you're all tapped out, what can you do? Do not worry. We have your backs with our first ever Strict Scrutiny Goes Hollywood, your binge-worthy SCOTUS movies playlist.

So let me get started with my first strict scrutiny movie pick, and that is Amistad, a 1997 Steven Spielberg film about the 1839 uprising on the slave ship La Amistad. Many of you might know this story. The ship was en route from Africa with a group of Mendi tribesmen who had been captured and were intended to be sold in the transatlantic slave trade. They rose up and captured the ship. The ship was then subsequently captured by a U.S. frigate and then ensued a legal battle over the ownership of the ship with John Quincy Adams, former U.S. president, arguing before the court, the United States Supreme Court, on behalf of the tribesmen. And the best part about this movie is that there is a terrific cameo, probably the best SCOTUS cameo ever, maybe the only SCOTUS cameo ever, in which Justice Harry

A. Blackman plays Justice Joseph Story. And he's actually credited on IMDb, the International Movie Database, as the Honorable Harry A. Blackman. So that is definitely one to watch. And Kate, you had another one that you liked too. Wait, so Justice Blackman has an IMDb entry? Yes! Today I learned. Wow, that's awesome. Becoming Justice Blackmun on IMDb. So I am going to mention The People vs. Larry Flint, which is a 96 film that stars Woody Harrelson, Edward Norton, and Courtney Love. And it's largely like a biopic of Hustler founder Larry Flant, who is, I'm sure it's no surprise, like a really complicated figure. But a lot of the story actually revolves around this important First Amendment case, Hustler versus Falwell, which Jerry Falwell, of course, a well

known minister and public figure, sued Hustler after it ran a parody that purported to feature him reminiscing about a first time that involved his mother. So it's clearly a parody, but he files a suit for libel and invasion of privacy and intentional infliction of emotional distress. And the Supreme Court basically finds that the New York Times versus Sullivan's actual malice standard does apply to claims like this brought by public figures. But I haven't seen the movie in a very long time. But as I recall, there's a pretty wonderful Supreme Court scene because Flint actually tried to, well not tried to, did fire his lawyer's a pretty wonderful Supreme Court scene because Flint actually tried to,

would not try to, did fire his lawyer just days before the Supreme Court argument was scheduled. And I don't remember how the film treats it. In reality, the court ended up appointing a lawyer to argue the case successfully. And this is a lawyer who had already filed an amicus brief. But, you know, there are not tons of depictions of Supreme Court arguments on film. And this, I think, is a very good and worthwhile one. Although, again, caveat, I have not seen this film in many, many years. Well, so another film in which there is also a Supreme Court oral argument is The Woman in Gold, which is a 2015 film starring the incomparable Helen Mirren as Maria Altman, an elderly Jewish refugee who, with her young lawyer, Randy Schoenberg, who is played by a delectable Ryan Reynolds,

fights the government of Austria for almost a decade to reclaim the Gustav Klimt painting of her aunt, Portrait of Adele Blockbauer I, which had been stolen from her relatives by the Nazis in Vienna just prior to World War II. She took this legal battle all the way to the Supreme Court of the United States, which ruled on the case in Republic of Austria versus Altman. And the outcome of that case allowed her to then pursue her claim against the government of Austria. The outcome allowed her to actually reclaim the painting, and it was later purchased by Ronald Lauder of Estee Lauder. And it now hangs in his co-owned New Gallery in New York City. And you can see it there. And if that whets your appetite for art restitution and reclamation, you can also check out some terrific documentaries on the Altman case, including Stealing Klimt, 2007, Adele's

Wish from 2008, which was made by the husband of Altman's great niece, and The Rape of Europa, which is a 2006 documentary which deals with the massive theft of art in Europe by the Nazi government during World War II. So all of those are terrific and very highbrow. I was going to flag three movies that were either about Supreme Court justices or about Supreme Court cases that I think are worth checking out. The first is Loving, which tells the story of Richard and Mildred Loving, the plaintiffs in the 1967 U.S. Supreme Court decision Loving v. Virginia, which invalidated state laws prohibiting interracial marriage. The second is On the Basis of Sex, which tells the story of the life and early cases of Justice Ruth Bader Ginsburg. And the third is Marshall, which stars Chadwick Boseman as Thurgood Marshall.

And it tells the story of one of the most important cases that he was hired in, which is to defend Joseph Spell, who's accused of raping his white employer. And the lawyer was not allowed to speak during the trial. So it was a really interesting movie about Thurgood Marshall's career before he became the first African-American Supreme Court justice. The final Supreme Court goes to Hollywood tip for you in this quarantine time is kind of a fantasy SCOTUS tip. So I'm going to bring back this old chestnut from 1993, The Pelican Brief, which is based on the John Grisham novel of the same name. It is wildly implausible, but completely fun. And it features a very young Julia Roberts and Denzel Washington. And the plot is fantastic. So two Supreme Court justices are assassinated. And Tulane University law student Darby Shaw, who's played by Julia

Roberts, writes a legal brief detailing her theory on why they were killed. Spoiler alert, it involves pelicans. Now, first query, why this is a legal writing assignment in the first place? I don't know, but I think it's great and I'm just going to go with it. So she writes this brief. She passes a copy of it to her law professor, who also happens to be her boyfriend. What the actual, okay. He in turn gives it to his very good friend. This is like an issue spotter for us. It's such an issue spotter. This is such an issue spotter about institutional liability. But he passes it on to his friend who is a special counsel to the director of the FBI. And then soon after that, the law professor slash boyfriend is killed and Darby realizes that her Pelican brief holds the key to so much more. And so she teams up with

Denzel Washington, who is a wizened Washington, D.C. reporter to solve the case and hijinks ensue. And it is exactly what you need in these dark days of quarantine. So you will thank us later. We are so excited to bring this to you. This is the kind of content I've been here for the entire time. And I am so glad that coronavirus has allowed me to bring these to the world. This is the one silver lining of all of this. And my heart is full today. I have to tell you, Melissa, that you have legitimately convinced me to watch the Pelican Brief tonight while I fold 7,000 loads of laundry because there's so much laundry with everyone in the house. I will lastly mention that I, this is not a SCOTUS movie, but I have

become totally obsessed with Tiger King. I do, I'll tell you, I don't watch any TV at all and I cannot get into anything more than I am into this in my life right now. It has murder for hire. It has baby tigers. It has polygamy, cults, spousal murder, presidential campaigns, everything that you could imagine needing when you're on quarantine. So I love Tiger King. And it's not just one cult. Every one of these groups is kind of a cult.

And don't even get me started on the expired Walmart meat. That is probably the best part. Tiger King is amazing. I mean, I wish we could find a SCOTUS hook for Tiger King. I'm still waiting. I'm only on the fifth episode. So maybe in seven or eight,

there'll be some type of jurisdictional hook. I'm still hoping fingers crossed. Keep hope alive. Okay. So that's all we've got time for today. Thank you to our fabulous producer, Melody Rowell, who's got a harder job during quarantine, making us sound good than normal, but we really appreciate it. To Eddie Cooper for our music, to our spouses for keeping children

at bay while we slip away to record. We had no interruptions this hour, which is, I think, kind of miraculous. To all of you who are continuing to support us, we're still getting receipts. People are buying swag. I think Leah mentioned on the last episode that there's some shipping delays, which is the case with all kinds of merchandise right now. Including my wine. My wine took like 10 days from Naked Wines, but I just got it today. Thank God. Game.

All right. So Pelican Brief and wine. Pelican Brief and wine. Sounds like a good name. Okay. So thank you all for listening. Until next time. Stay safe.

Stay healthy.