Strict Scrutiny - Burn Book on Purposivism

Episode Date: May 3, 2021

Leah and Kate recap the textualist bonanza in Niz-Chavez v. Garland, and the recent arguments in Americans for Prosperity Foundation (during which Justice Alito signaled that he’s a fan of the pod) and Mahanoy School District. They also preview the final case of the term, Terry v. United States. Follow us on Instagram, Twitter, Threads, and Bluesky

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

and end with a brief court culture segment. And in the middle of that all is going to be a big we called it segment. Basically, this show is going to be a long victory lap. So just buckle in. Okay, so Leah, do you want to start us off with the grants? Sure. So we got some really big grants this week. The first and arguably most important one was in New York State Rifle and Pistol Association, aka NYSERPA Part 2, versus Corlett. So this case involves New York's requirement that applications for license to carry concealed handguns show proper cause. New York courts have construed that requirement to mean a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession. In other words,

a requirement that you show good cause particular to, as to why you need to carry a concealed weapon. The challengers argue that this scheme violates the Second Amendment and the court will both resolve the constitutionality of New York's and similar laws and, in the course of that, tell us, for the first time since Heller, how state and federal firearms regulations will be reviewed under the Second Amendment. Everyone is expecting that this case will tell us something about the scope of Heller, and in particular, to what extent it might apply outside the home, since, of course, it involves licenses to carry concealed weapons. The core of the right that is protected in Heller is pretty clear, right? It protects a right to keep a usable handgun in the home for self-defense.

But what else Heller may or may not protect, put differently, what types of gun regulations Heller might invalidate, just isn't clear. And this really will be the court's first pronouncement on that question since Heller, you know, over a dozen years ago. Petitioners in this case are represented by Paul Clement and Aaron Murphy. I think that's the same team that did NYSERPA 1, which was dismissed as moot just about a year ago. So they explicitly framed the case as about Second Amendment rights outside the home broadly. But the court then reformulated and somewhat narrowed the question presented to omit that kind of guns outside framework. Rather, just to ask whether the New York licensing scheme, right, specific to concealed carry, interferes with the Second Amendment right to self-defense.

So several states have these kinds of restrictions, including California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and some other states have variations on them. There's an important empirical study that law professors John Donahue and Abe Inia, as well as Kyle Weber, put together. And they found that so-called must-issue laws, laws that don't allow officials to deny concealed carry permits or that don't impose some sort of heightened showing to obtain one, are associated with a 13 to 15 percent higher aggregate violent crime rate 10 years after the adoption of those laws. So this study was published in the Journal of Empirical Legal Studies in 2019. So this seems really important, of course, query whether anybody in the majority on this court is going to care about the impact on the ground of a ruling that would essentially require states to adopt functional must-issue regimes. So there's that new empirical work. There's also a lot of important historical work that has been done in the 13 years since Heller. And I think it

mostly makes really clear just how heavily regulated firearms have been throughout American history. Even setting aside what you make of Heller on its own terms, Heller very much prescribed a very historically focused mode of analysis in evaluating future gun regulations. And it seems to me that if you look closely at the history, there's a lot of support for the permissibility of these kinds of regulations. So historian Saul Cornell has a good piece up in Slate today that I wanted to flag that basically argues that if the avowed originalists on the court really do care about a historically grounded method, they're going to have to sustain New York's regulation, right? So here, this kind of methodological commitment and their preferred gun rights protective outcome are going to be across purposes, and they're going to have to choose between them.

It's sort of anybody's guess which of these two kind of competing imperatives is going to prevail. As we were texting when the court's grants came out earlier this week, we said something like, I think the court is saying they're not scared of Biden's commission. They're just ready to dive right in after taking it a little slow for a couple of months. What do you think, Leah? Yeah, we will have more to say about this case down the road, but I think it is almost certain that the court is going to invalidate this restriction. I mean, you have had several justices openly calling for the court to basically discard the standard that the lower courts have used to uphold restrictions like

this. So Justice Thomas, Justice Alito, and Justice Gorsuch have all suggested that the standard used to uphold laws like New York's is not the correct standard. I also have little doubt about where Justice Barrett and Justice Kavanaugh sit on this issue, given their writings when they were Court of Appeals judges. So, you know, I think the outcome is a foregone conclusion. And the only question is how broadly this opinion is written. Yeah. But yes, we will definitely have much more to say about it. Okay. So a couple other things on the grant list. What else? The second grant was in United States versus Abu Zubaydah. This case is about the scope of the state secrets privilege and whether the Ninth Circuit was wrong to reject a claim of state secrets privilege in a case against former CIA

contractors. So the plaintiffs in the case sought information about CIA detention and interrogation programs in the wake of September 11th, and they are hoping to use that information in a criminal proceeding in Poland against Poles officials and also in the European Court of Human Rights. This petition was filed in December of 2020. So under the Trump administration, and I guess we will wait to see what change in position or change in argument, if any, we will see from the Biden administration on the state secrets privilege. Yeah, you know, there's obviously been a lot of continuity between Democratic and Republican administrations on the state secrets privilege, not perfect continuity. The Obama administration early on did review and revise its approach to the assertion of the state secrets privilege. But I'd be surprised if

we see like a 180 shift here, although there could be some refinement in position. And the last of the grants we saw was in a case called Houston Community System versus Wilson. So this is a First Amendment case about an elected body's ability to issue a censure resolution in response to a member's speech. So here you have the Houston Community College Board of Trustees, and it censured one of the trustees, David Wilson, for, among other things, filing lawsuits against this community college, allegedly leaking confidential information, publicly denigrating the school's anti-discrimination policy, orchestrating negative robocalls to other members' constituents. So he received a censure from the board in response to all of this,

and he filed a First Amendment challenge. And the Fifth Circuit found that he had a valid First Amendment claim for damages against the board for its censure of him. And then actually in an 8-8 tie, the Fifth Circuit declined to rehear the case on Bonk. And the board represented by the Stanford Supreme Court Clinic has now successfully petitioned for cert. This seems like a fascinating case to me. And I'm sort of eager to dive into it. I feel like there are in this trustees First Amendment indignation. It feels to me like there are echoes of former President Trump's First Amendment defense to his impeachment trial, somehow, and somehow the kind of perversion of the First Amendment as not a bulwark against government overreach, but an additional tool that, you know, government officials can wield against other entities in government seems so bizarre to me. And yet,

I, you know, have a feeling that the idiosyncratic vision of the First Amendment as often a tool to further empower the powerful is one that, you know, there's a lot of sympathy for in some corners on the court. And I think this trustee is going to get a receptive hearing. Although, you know, I don't yet have a sense of how it's likely to play, but I do think it'll be a really interesting case. No, I think so, too. And I mean, you mentioned how this has echoes of Trump's impeachment trial. This also has echoes with kind of ongoing, let's say, censure proceedings against like Representative Marjorie Taylor Greene for what she said about, you know, Democrats or previous Democratic administrations. And so this could be

quite significant. And I guess, you know, we'll talk more about this case next term when it's actually argued and briefed. But what do you think the over under is on Sam Alito bringing up cancel culture at argument in this case. Or Thomas writing an opinion that gratuitously invokes Section 230. Right. Like either of these things seem like there's more than a 50% chance that one of them happens. North of 50. Even both happening close to 50.

Yes, it does feel like it has intersections with a lot of currents that are out there in the ether, even if not directly implicated. And so I think it's going to be a really interesting case for that reason. Okay, so let's move on to opinion recaps or just recap, right? We just got one opinion this week. It is now the time of year when on opinion announcement day, I think, I don't know about you, Leah, but I am like fully adrenalized sitting at my computer obsessively refreshing because the Supreme Court loads at 10 in theory, but really 1001 or 1002 right now. I get so annoyed because like I'm ready to go at 955. And once that once that clock strikes 10, I'm like, where are my opinions? So I guess I have thought that in April we were unlikely to get the Affordable Care Act case or Fulton versus Philadelphia. But that once May hits and we're there next week, I think it's a live possibility.

Yeah, I mean, those cases were argued in November. I feel like we're going to get at least one of them in May. I totally agree. But we only got one opinion this week, right? So what was it? It was Nish Chavez versus Garland. Also, how weird is it that Merrick Garland is now a case caption name and will be for a bunch of Supreme Court opinions? Like, I kept doing kind of like a double take. Me too, because this is the first one and there will be many. And I guess maybe he's been subbed in some filings. Yes. But opinions, this is the first one and there will be many. And I guess maybe he's been subbed in some filings, but opinions, this is the first one, and there will be many that bear his name. So not the way we once thought his name would be

associated with this institution, but an obviously important, meaningful way nonetheless. Okay, so what is his maiden voyage on the wrong end of the V in a Supreme Court case? This particular case involves a somewhat technical question of immigration law, which is when the so-called stop time rule is triggered by a notice of removal. Under immigration law, there are certain kinds of immigration relief, in particular cancellation of removal, that are available to persons who have maintained a continuous presence in the United States for a certain period of time. And under IERA, the Immigration Reform and Responsibility Act, continuous presence shall be deemed to end when the, quote, alien is served a

notice to appear. So this case is a follow-on to Pereira v. Sessions, an opinion by Justice Sotomayor that held that a notice to appear that did not include the information required by the statute did not trigger the stop time rule and end the period of continuous presence. In this case, the court said the notice to appear that triggers the stop time rule and ends the period of continuous presence must be a single document with all of the required information, not multiple documents in separate mailings with information aggregated together. That is not notice of charges in one document or one, and a hearing date and time in another. Okay, so this was a super weird lineup. So it was a 6-3 majority, Gorsuch the author. So okay, that's, you know, that's a

little familiar. We say Gorsuch, maybe we throw in Roberts and Kavanaugh and the liberals and we get to six. No, this was Gorsuch and Thomas, which made me do a triple take, and Breyer, Sotomayor, Kagan, and Barrett. And none of them wrote separately. So they all agreed on the opinion. It doesn't mean they all agreed on every word, but no one saw the need to state their divergence from this Gorsuch opinion, which is really quite an accomplishment with that group of six. It's a very Gorsuch opinion in all kinds of ways. Yeah, like his shtick

just comes through in this opinion several times over. Like on some level, I wonder if like ever since he was in law school, he kept like a journal of phrases about textualism and statutory interpretation. And like every night before he goes to bed, he like writes some of them down. And he has like an infinite supply to be drawing from for the next several decades because like he used a few in this opinion. Oh, my God.

The statutory interpretation zinger journal that he has had on his bedside table it's like his burn book for purposivism i think we got our show title there leah so yeah so there you know he definitely was able to draw pretty extensively on this Byrne book. So he really leans on the word A, right, the indefinite article, saying that means one thing. So, you know, maybe we could read from a portion of the opinion. He says, look, admittedly, a lot here turns on a small word. In the view of some, too much. The dissent urges us to overlook the fact that Congress placed the singular article, A, outside the defined term in Section 1229A1. On its view, we should read the statute as if the article came inside the defined term, but that's not how the law is written, and the dissent never explains what authority might allow us to undertake the statutory rearranging it advocates. So what else? What else should we highlight from this opinion, Leah? So, you know, some interesting turns of phrases at argument in this case, as well as some others, I think he has brought up the idea that, you know, men must turn square corners when they

deal with the government and that line and a variation on the idea made its way into the opinion. So he said, if men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them. A part of me wondered if Justice Ginsburg were still on the court, if she would have dropped a footnote that said, I join all but this sentence of the opinion, which is not gender neutral language. But, you know, that's neither here nor there. Yeah, because he's obviously he's quoting, right, a Holmes opinion, but he doesn't. He's not actually placing the language in quotation. So he is certainly at liberty to update the gender pronouns being used here and does feel like a considered choice that no one really objected to or called him out on. And I'm sure you're right that Ginsburg would not have abided. kind of austere textualist mode in this instance does help the immigration plaintiffs in the case by disallowing the government's argument that it can provide notice in a succession of separate

mailings as opposed to an a singular one. There is definitely some fairly testy exchange between Gorsuch in the majority and Kavanaugh in the dissent, right? Kavanaugh insists that judges interpreting statute should follow ordinary meaning, not literal meaning, which I think is basically the same accusation that he leveled in his Bostock dissent. There were several. Gorsuch just can't help himself from responding. So he says, look, at one level, today's dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. That was obviously one of the lines that was in the burn log, right?

Exactly. Exactly. Like words are how the law constrains power. He's just been waiting to like break that one out. I just feel like I can see Kagan's eye rolling on the page. Like she must be at some of this, right? I'm trying to imagine like what would happen if,

you know, Justice Kagan were still Dean or Professor Kagan and some law student handed in a paper with that sentence in it. Yeah. Yeah. I just, but she just, she just has to,

you know, enthusiastically, right. You know, circulated. Can you know, enthusiastically circulate a join memo. Can you imagine the join memo? This is great, Neil. Great italics. So yeah, so he responds in a couple of other places to the dissent. I think I spotted another one of these burn book excerpts. So the dissent is making arguments about the kind of costs and benefits of the rule the majority adopts,

and he responds indignantly, but that kind of raw consequentialist calculation plays no role in our decision. Instead, when it comes to the policy arguments championed by the parties in the dissent alike, our points are simple. As usual, there are at least two comes to the policy arguments championed by the parties in the dissent alike, our points are simple. As usual, there are at least two sides to the policy questions before us. A rational Congress could reach the policy judgment the statutory text suggests it did. And no amount of policy talk can overcome a plain statutory command. He was so pleased to get to write that last part. Exactly. Exactly.

Like now our listeners are going to know to look for these like burn book lines that he's just been workshopping for decades. iteration of the debate from Bostock, like literal meaning versus ordinary meaning, where Justice Kavanaugh says textualism is you go to a cocktail party, you give someone the words of the statute, and you ask them, you know, like, what do you think it means? And that's textualism, you know, like ordinary meaning. And for Justice Gorsuch, like, that's not textualism. It's like literal meaning. It's like the science that Justice Alito kind of decried in his like, Facebook versus De Gui concurrence. It's like, I will look at the dictionary, I will apply these formulas, and then I will arrive at the answer. And like, that's what textualism is. So, you know, perhaps interesting, even though that lineup seems strange, perhaps this is a recurring lineup that we will see where you get, you know, the justices who believe that textualism is more

literalism, you know, on one side, and the justices who believe textualism is more ordinary meaning, like Kavanaugh or Alito, although I don't think of Justice Alito as like anything really like a textualist. And so maybe this division will reoccur in other cases in the future. I don't know. Yeah, yeah, no, it's interesting. And it's also like, yes, he pulls out dictionaries, but of course he also offers a number of examples to illustrate his point. And those examples come from a linguistic

universe that he inhabits that is the same thing as a cocktail party. It is basically, he's pulling from the cocktail party in his mind. But it's his little textualist cocktail party where like everyone has the burn book on purposivism and all of their canons like memorized. And so they're all doing all the rules. And like dictionaries as coasters. Like so there are. Yeah. So that's I

think that's a good way to think about it, actually. But it is nevertheless a cocktail party. Right. Oh, yeah. And it just denies that that's what it is, which drives me crazy. Absolutely. And like then he like tried to impose some order on the cocktail party, right? And it just denies that that's what it is, which drives me crazy. Absolutely. And like, then he like tried to impose some order on the cocktail party by like, after listing all of the examples of words followed by A, he's like, well, you only use A when you're talking about countable and like divisible categories rather than indivisible ones. So that's how I know, you know, this notice refers to like a singular document that could be multiple ones. And it's just like, oh my gosh. I do think it's interesting that we have now seen that Barrett seems interested in, more interested in the Gorsuch cocktail party

than the Kavanaugh cocktail party. At least in this opinion, we will see if this is, as you said, a lineup that recurs. But it was definitely interesting. This case now marks four opinions that Justice Thomas has assigned this term, which is an important shift given that he's assigned, I believe, fewer than 10 cases over the last decade. So when you're thinking about, you know, the changing dynamics on the court or the ideological direction of the court, I think that is an important indication. In some ways, it's really sad that Thomas was in the majority here, because you could have, if you just had five, Breyer could have gotten to assign this opinion. And instead, Thomas crashes the cocktail party, and he decides to give it to Gorsuch. Man, Breyer can't catch a break. Poor Steve. Poor Steve. In theory, he could do some assigning right now. But there's just not a lot of cases breaking where it's the liberals plus two of the new justices.

It's not inconceivable that that could happen. But I don't think we've seen it yet. Yeah. So one interesting question that might follow on this case is what effect this decision might have on unlawful reentry prosecutions under section 1326d so that statute specifies limitations on an ability by a defendant to collaterally attack the underlying deportation order that they were subject to and i think this opinion raises the question uh well can you collaterally attack the underlying deportation order if the notice to appear in that case was defective? Would that fall within one of the statutory exemptions under 1326D, which allows you to raise a challenge where the deportation

proceedings at which the order was issued improperly? Oh, that's really interesting. All right. So we'll stay tuned. And just in terms of as we keep our eye on what else is coming down the pike, because as we said, there was just one opinion this week. This was argued in November, right? And I feel like you always keep a good eye on like what remains from the different sittings. So both Fulton and the Affordable Care Act case were also argued in November. So who has yet to write? And I feel like I don't want to put you on the spot, but do you have predictions about who has what of the big opinions? Yeah. So the chief, Justice Alito, Justice Breyer, and Justice Kagan have yet to write in November.

And there are three outstanding opinions, the Affordable Care Act one, Fulton, the religious liberty adoption, LGBTQ equality case, as well as Borden on the Armed Career Criminal Act. I think Justice Breyer might be the justice who's not writing of that group, just because he had two opinions from October. I think it's likely the chief would keep the Affordable Care Act opinion for himself. I think that probably means Justice Alito has Fulton, you know, the day he has been training for ever since, you know, Obergefell and Windsor. Like, this is... He's got a burn book of his own. Oh, yeah. I mean, the thing is, though, like many of a lot of that content is out there. We saw tons of it in the FedSox speech. He's been posting drafts of it for a while now.

But this is like potentially, this is like the full novel. Yeah. Right. And so I think after the argument in Fulton, we had been wondering whether we weren't going to get a full overruling of Smith but instead a narrowing where

you were dealing with Injustice Kavanaugh's views, a situation where the burdens on individuals who would be subject to discrimination wouldn't be so great because they could find an alternative service provider. I'm not sure that Justice Alito wants to write that opinion. I think he wants to write an employment division versus Smith is an anathema, but we'll see. I think that when the court basically said in the most recent California COVID case that government regulations are not neutral when they treat any comparable secular activity more favorably than religious exercise, that did feel like a pretty clear indication

they're overruling it outright. I think, yeah, that kind of, even if they thought they might be taking a more modest path coming out of the argument in Fulton, that no longer seems very likely to me. I agree. Yeah. Okay. So, but I, I think that we may not have to wait until the end of June. It's a light year. They are, you know, presumably at home writing these opinions. I think that we're probably going to get a lot in May. And they could well, I remember last year they went into July, but it was such a strange year with everything having shifted online. I feel like everyone is now kind of in the work at home groove. I guess they're back conferencing in person, but not going to oral arguments, obviously, in person. And so I think there's a decent chance they get their workload

kind of wrapped even earlier than the end of June this year. Let's do argument recaps, and we will start with our victory lap, which occurred in Americans for Prosperity Foundation versus Sponta. This is the case about California's reporting requirement that required nonprofit organizations to turn over information that they give to the federal government about their major donors to the state as well. And the formal legal question in the case is what is the legal standard in cases involving First Amendment associational rights? Is it exacting scrutiny, or is it instead strict scrutiny? And does the legal test include a requirement that

the state use the least restrictive alternative possible? But it turned out that a second issue in the case, which I think is likely to be as important, if not more important, is when courts should entertain an as-applied versus a facial challenge. So quick explainer on what they are. A facial challenge is an argument that a statute or regulation cannot be applied to anyone. An as-applied challenge is where you argue that the statute or regulation cannot be applied to you. The plaintiffs here made both challenges, and the Solicitor General and the justices appointed by Democratic presidents were open to an as-applied challenge, but the plaintiffs are pushing for a facial one. So what is the standard for a facial challenge?

In some prior cases, the court has said you have to prove something like there is no set of facts under which the law or policy would be constitutional. In First Amendment cases, the court has described it as you have to show the laws unconstitutional in a substantial number of cases. And in reality, and in a number of areas of law, the court has not, you know, adhered strictly to this very strong articulation of a standard for facial relief, in which basically no constitutional application is possible. Think about, for example, abortion cases in which an abortion restriction may not represent an undue burden for all women seeking abortions, right? Defenders of abortion regulations would like the standard to be that the regulation cannot constitutionally be applied to anyone.

But so far, at least, the court has not adopted that reading. But it has generally required some showing of unconstitutionality in a substantial number of cases and suggested that if that is not the case, then as applied relief is preferable. Richard Fallon, who's a professor at Harvard Law, has a wonderful article about this fact and fiction about facial challenges that the court itself has cited. And in that article, he shows that the court has invalidated statutes on Commerce Clause, Section 5, Suspension Clause, Presentment Clause, Tenth Amendment, Supremacy, and Privileges and Immunities Clause of Article 4 grounds without adhering to the most strict articulation of the facial challenge standard. So here is Justice Kagan explaining, you know,

the ostensible difference between as applied versus facial challenges. I mean, I guess I would have thought that a facial challenge you need to show that, you know, some significant number of people in the world actually have this concern. And otherwise, you should bring an as applied challenge. I thought that that was the whole point of the distinction between the two. American for Prosperity Foundation lawyer, you know, she basically laid out the set of facts that would seem to suggest that a facial challenge, again, if you assume that a facial challenge has to involve some showing that there is unconstitutionality in a large number or a significant number of cases just wouldn't be appropriate here. And this exchange also involved her kind of doing a typical law professor thing where the oralist is fighting the hypotheticals.

Mr. Schaefer, I'd like you to assume a set of facts with me. And they're this, that there are some donors to some charities who are genuinely concerned about public disclosure for fear of harassment or threats, but that a very substantial majority of donors and a very substantial majority of charities are not concerned about that. In fact, they rather like public disclosure of their generosity. If that's so, could you win a facial challenge? Yes, Justice Kagan, for two reasons. One is that in the First Amendment context, we need only show a substantial number of instances. No, I'm saying, you know, the great majority are not concerned about this.

Well, respectfully, I would question your Honor's premise. I think you have from Paul Sherber's the fact that it's part of the donor bill. Excuse me, Mr. Schaefer. My premise is supported by a lot of facts. Most charities disclose their donors, and in fact, it's part of their strategy. The more disclosure there is, the more fundraising and association there is. So anyway, let's just take my facts as a given. Yeah, I thought, Leah, it was really interesting just how much of the argument was consumed with this discussion of the distinction between facial and as-applied relief, even getting

really kind of in the weeds as to how as-applied challenges in this area would proceed, how they would work. So there was a suggestion that potentially California could devise some administrative procedure to allow the raising of these as applied challenges as an internal matter, as opposed to requiring challengers to go to federal court. Although as the acting solicitor general sort of underscored, you know, going to court to bring these as applied challenges is something that has been done in a lot of related areas for many years. Courts are perfectly competent to adjudicate these as-applied challenges. So she, you know, there was no suggestion that there is at present any administrative mechanism in California for raising these as-applied challenges. So

it was sort of an odd discussion in that it probed the adequacy of a non-existent state mechanism. There could be some interesting way, if California is nervous about the outcome in the case, I could well see some attempt to craft some such system. I'm not sure if you would then try to moot the case because of it, but prospectively to allow some, you know, fast track mechanism for race needs. Because the chief did seem concerned, look, this case has been going on for seven years. Is this the only way to get relief? Yeah. So now the moment we have been waiting for. So patiently.

We wanted to follow up with the most important issue that was raised on last week's episode. We now have definitive proof that Sam Alito listens to strict scrutiny, or at a minimum, that we perfectly understand what is happening in Sam Alito's mind. Call us the Alito whispers, if you will. So let's play a clip of you, Kate, predicting what might happen at this oral argument. So I do think, I mean, I'm going to make a prediction now, since we're talking about Sam Alito, that he is definitely going to ask about Sherilyn's brief. Like, definitely going to want to talk about it. So, I don't know. I was just spitballing. Seemed like something that could happen.

And then what happened when we all sat down to listen to the oral argument? Sam, take it away. Let me ask you about your position with respect to this particular case, because I found it a bit puzzling. You say that the case should be remanded so the Ninth Circuit can consider, quote, how significant the harm would be to petitioners' contributors if their identities became publicly known. You know what the record here shows. The district court conducted a trial and it found ample evidence that the contributors to petitioners would be harassed. And the brief filed by the American Civil Liberties Union and the NAACP Legal Defense Fund and other groups says,

quote, petitioners have shown that people publicly affiliated with their organizations have been subjected to threats, harassment or economic reprisals in the past and are likely to be chilled. Not to be outdone. You know, I raised the stakes and explicitly challenged him. Sam, if you can read my mind, bring up the NAACP LDF brief at argument. I'll know you're listening. And sure enough, he did it again. All right. The brief filed by the ACLU and the NAACP Legal Defense Fund says that we should regard your system as a system of de facto public disclosure, because there have been such massive confidentiality breaches in California. Why was that so satisfying, Leah?

What do you think it was? You know, I have a lot of different theories. I'm just going to offer one. You might have some other ones. I don't know if you would be willing to share, but, you know, I love doing this podcast. I love doing Supreme Court commentary. I enjoy it. I feel like it's like valuable in some ways. But it's also true that like, I don't know if you feel this way, but like, I feel like I personally get a fair amount of pushback just because I'm, you know, poking fun at like Neil Gorsuch's like burn book on purposivism, or, you know,

how consistent the justices are in their methodology and like sometimes get, you know, derided as like not being able to like engage the arguments or like take it seriously. And it's like, well, actually, I do think, right, I understand what is happening in these cases. And even though this was like, a very, you know, like, I don't know, silly prediction, right? Like, it was a correct prediction. Like, you can understand what is happening at the court, even when you are making light of it and kind of mocking it. First, let me just say it's ridiculous if anybody out there is challenging the quality or substance of Supreme Court commentary that you do, Leah. But I think that's basically what it is, too, in that I think we do try to do both the substance and the doctrine, but also have some fun with it. And we do have insight

into what makes these justices tick. Not perfectly. They surprise us all the time. I don't really want to live inside any of their heads. I'm sure you don't either. But I agree. It was like, it felt like a certain validation of the way that we are engaging with this material that is i'm sorry it is substantive right it is but it was um but it was fun and satisfying in part because it was like actually the argument on the substance was going i think not well for california and so i was at least able to derive a degree of satisfaction from us having predicted that properly. Yeah, so okay, so that was Alito. There's a mind meld. He's either actually listening or more likely we have just got his number. But Justice Thomas was sort of doing something similar. Yeah, Justice Thomas's

questions in the case seem to be taking a similar tack that Melissa has observed and actually wrote a fantastic article about in cases involving contraception and abortion. In those cases, recall, Justice Thomas has insisted that states could regulate contraception and abortion because contraception and abortion and the court's cases protecting them originated as or are used as a way of minimizing Black lives. And so like a similar, you know, concern seemed to be animating his questions in this case and like skepticism of the reporting requirement. Why don't we play those clips here? Thank you, Mr. Chief Justice. Counsel, I'm interested in your discussion of the non-public disclosure laws, the fact that you would have this internally and not disclose it to the general public. But throughout at least recent history, or not so recent history, the Japanese internment cases that census data was used to locate them. The Council on American Islamic Relations, in their brief in this case, government uses data to locate American Muslims.

In the civil rights cases like the NAACP case, the local government, state governments wanted data in order to target the NAACP. So how can we say that there is a difference in public disclosure versus non-public disclosures? He is very much deploying race and accusations of racism in service of a larger jurisprudential project. In this era, there seems to be quite a bit of loose accusations about organizations. For example, an organization that has certain views might be accused of being a white supremacist organization or racist or homophobic, something like that, and as a result become quite controversial. We should also just flag that Thomas has been the most protective in a number of cases of these associational privacy interests. So, you know, Citizens United and several other cases are 8-1 in favor of disclosure requirements, but he was alone in dissent in those cases. And, you know, I suspect he's going to have some company in his position in this case when it's ultimately decided.

So Justice Breyer was keen during argument on figuring out what the difference was between this case, which involves anonymity and donating to charities, and a future case involving campaign contributions and anonymity in political speech. If you win in this case, I think the court will have in some form held that the interest of the donors in maintaining privacy of their giving to a charity, the interest of the charity in receiving those money, here at least outweighs the interest of the state in having a law on the books that even if it never is actually enforced frightens people into behaving properly. Okay. Something like that. Well, if we hold that? Can we distinguish campaign finance laws where the interest is even stronger in people being able to give anonymously? Can we distinguish laws that require them to disclose their givers? How would you distinguish that if you would? Okay, so maybe let's offer a few closing observations. So one, I will say it was clear

to me coming out of this argument, very much in the same way it was in Cedar Point, another case involving California, that the challengers here are using this case as one step in a long deregulatory journey, right? That if they win in this case, they will challenge the analogous federal requirement. The lawyer for Americans for Prosperity didn't even really disavow any intention to do so. So there might be different justifications for the federal law, but that would be another very significant step, right, to take aim at the IRS's requirement that charities submit confidential information about their donors. And yet it seemed very possible to me based on this argument. Absolutely, if the court announces any kind of ratcheted up scrutiny in this context, that will be the next second used to attack compulsory disclosure in the campaign finance realm of political contributor information. So this very much did not feel to me like a standalone case, but as an opening salvo. And maybe one other thing I'll observe, which is that I thought

acting Solicitor General Elizabeth Prelugger was superb. And she was arguing that the case should be sent back down, that these associational privacy interests are serious, that they should get another close look, but just that as applied relief, as opposed to facial relief is appropriate. And she underscored that the United States wasn't taking a position on the ultimate close look, but just that as applied relief, as opposed to facial relief is appropriate. And she underscored that the United States wasn't taking a position on the ultimate outcome of the as applied challenge and sort of seemed to be signaling to the justices that the United States would be perfectly happy if it were a six, you know, if the as applied challenge were sustained here. And, and so I thought she got some traction and her responses were just incredibly deft. But if she is successful and the case goes back down for as applied review,, I think, is facial invalidation. And I guess the next best thing California and proponents of some kind of regulation in this sphere can hope

for is that the court just restates the standard it has used in other cases and finds that California hasn't demonstrated a sufficiently weighty interest here to justify the serious burden on the associational privacy interests. Yeah. Did you notice this kind of like, so the Beckett Fund filed a brief just resting on the assembly right as opposed to this associational privacy right? And I'm sure there is a long game there, and I just don't know what it is. But Kavanaugh seemed sort of fixated on this assembly right. And the Beckett Funds brief was really about the right to assemble and religious assembly in particular. And so I feel like clearly there's something to watch in

that space. I just don't know exactly what yet. Yeah, I think it arguably could be relevant to this as applied versus facial standards, since it came up in questions that some of the justices thought the typical more demanding standard for facial relief didn't apply where you were dealing with, quote, like a direct infringement of a right that's actually protected in the First Amendment. And I think part of the argument here was, well, maybe this case does involve like a direct infringement of a right actually protected in the First Amendment, whether that right is the associational right that Justice Thomas thinks is protected in the First Amendment, rather than something that is necessary to the enjoyment of other First Amendment rights. Maybe this part of assembly, like who knows? But I think that that

is one way it could be potentially relevant to this case in addition to laying groundwork in other ones. Yeah, that's really interesting. And that sounds right to me. Okay, so let's move on to the next case we wanted to debrief, Mahanoy Area School District versus BL. So this is the case about the cheerleader who was punished after writing and sharing a Snapchat that said F cheer after she did not make the varsity cheerleading squad. It said F a few other things, including F school, F softball, F everything. And that snap was screenshotted, shared with a coach, which then led to her suspension for a year from the cheerleading squad entirely. So the question is,

what kind of speech are schools permitted to punish students for? And does the answer to that question turn on whether the speech happens inside or outside of school? So the school district was arguing for the application of Tinker, at least where there's a nexus to the school in the student's speech. So in Tinker, the court said that schools could regulate student speech if the speech created a substantial disruption, even if the regulation involved the content of the speech. But Tinker squarely rejected the idea that students have no speech rights at school at all. And the student here is arguing that schools cannot punish students for speech outside of school. At Tinker, the expressive conduct in question was the wearing of black armbands

inside school. The student here is saying that is fundamentally different from this speech, which occurred outside of school. And she says that's essentially off limits to school disciplinary authorities, unless the speech falls into a narrow category of unprotected speech, like something like true threats. So from the argument, which took an insane hour and 50 plus minutes, I don't think we are going to get an opinion that announces a broad or major principle of constitutional law. I think we are more likely to get a narrower opinion saying that whatever the standard is or assuming Tinker applies, the discipline went too far here. And I think that that is completely right and could perhaps help in curbing some of

the watering down of the Tinker standard that has occurred in the decades since in the lower courts. So Justice Breyer summed up this position as follows. She used swear words off campus. Did that cause a material and substantial disruption? I don't see much evidence it did. And if swearing off campus did, I mean, my goodness, every school in the country would be doing nothing but punishing. And it certainly didn't help others. I mean, disrupt others. It didn't hurt others as far as I'm aware, as far as I could see in the record. Kavanaugh was interesting in this argument. He seemed really kind of torn up about the discipline.

But as a judge and maybe as a coach and a parent too, it seems like maybe a bit of overreaction by the coach. I obviously think it's unfortunate this spiraled, this case, the way it did, and completely understand the young woman's reaction to being upset with the decision, as I mentioned to Ms. Blatt, I think that's entirely typical and widespread for decades and decades when kids are disappointed by something like that. So he was, you know, really concerned about the severity of the punishment. And actually you could see that on display in a number of the justices' questions that they were a little frustrated that the case was in front of them at all because had this just been a verbal reprimand or like a one-week suspension or something,

it's very hard to see the possibility of a major First Amendment case growing out of it. But the school district really did potentially you know, potentially overreach. This was a severe consequence based on speech that only by kind of happenstance even came to the school authorities' attention at all. And so you kind of got the feeling that they wish that they didn't have the case in front of them at all. And it seemed like, you know, Justice Kavanaugh's questions, at one point, he actually explicitly said that he was coming at this case, like, as a coach or a former coach, which, you know, I think is notable, in part because, you know,

we sometimes like assume or told to assume that like the justices prior life experiences, right, have nothing to do with like how they view cases. This is like, obviously a lie. And like, sometimes it seems as though this is a lie only when you were dealing with like how they view cases. This is like obviously a lie. And like sometimes it seems as though this is a lie only when you are dealing with like justices who are women or justices of color. But like obviously that's not true either. Right. And here like he's making it quite explicit and yet no one thinks this was like somehow unjudicial or like horrible you know in fact it's like probably good that like someone understands how bonkers and insane like this punishment was for like this particular set of statements it's such a great it's such a great point it just you know it's it's you have to

think of justice sotomayor making an analogous point drawing on personal experience and it would have made news and it's just completely unremarkable when Justice Kavanaugh says, look, as a former high school athlete and a parent and a coach, like, I get it. This stuff is serious. And yet it goes totally unremarked. I think it's such a great point. Yeah. And then Justice Breyer dropped this bomb in which he shared his innermost fears. There are dozens of areas that didn't used to be thought of as within the purview of the public school. Today, in many places, they are. Now, add to that the internet and the internet not just listening to teachers, but also doing

homework and also writing papers, sometimes vaguely defined, and sometimes in sometimes. How do I get a standard out of that? I'm frightened to death of writing a standard. And Tinker, after all, doesn't really write a standard. It just says you can't regulate school unless it substantially disrupts or hurts somebody else. It doesn't say if it does that you can do anything you want. He literally says he is, quote, frightened to death of writing a standard to decide this case. He actually said something a little similar in the securities law class action we talked about previously, where he said, you know, the less the court writes, the better.

I have a solution. If he wants to write fewer opinions, or he doesn't want to have to announce legal standards, I have some ideas for how he can spend his time. Just going to put that out there. Yep. So the Chief Justice wanted to know about political speech directed at the school, about school policy or school funding, etc., but that happens outside of school. Justice Alito then asked about a slight variationologically male is a male, and there is a student who is biologically male but identifies as a woman, has adopted a female name, but the student who has the objection refers to this person by the person's prior male name and uses male pronouns. Can the school do something about that?

All of this is to say, I think the fact that the justices were struggling with so many hypotheticals and drawing the lines is just another indication that we are not going to get an opinion that announces a broad principle and instead a narrower opinion that says, you know, this particular case goes too far. This isn't a victory lap exactly, but I will flag that in a Lisa Blatt answer, she made reference to Michael Jordan, which made me wonder, A, whether she'd watch the documentary that you and Melissa talked about in our last episode, although I will confess I have not seen it. It's so good. Yeah, I'm like, Chris, my husband says the same thing.

But also, if she didn't, maybe it was on the brain because she listened to our podcast episode referencing it. I understand that Michael Jordan was upset, but at some point, presumably, he was respectful to his coaches. And there's a line that coaches always have to, coaches have to know their team and know what works. Seems, you know, marginally more likely than Sam Alito was listening. Yeah. You know, probably true. what works seems you know marginally more likely than sam alito was listening yeah um i i you know probably true um but like this particular statement there's no way she's watched the michael jordan documentary given that michael jordan you know he was not respectful to coaches and other players like repeatedly and to like management like this you know he

and like he did so publicly so it's just kind of like an interesting i don't know observation oh right so she clearly hasn't seen it based on that okay got it got it got it having not seen it myself i didn't even catch that um so then clearly she did have him on the brain because of the pod there we go definitive proof so uh just stepping back, probably going to get a narrow opinion saying that the school's discipline went too far. And as I said, I think that could be a good thing because it could curb the kind of loosening of the tinker standard. And in one question, Justice Kagan brought out how limited the tinker protections have become in light of decisions from the lower courts. But I'll just give you two cases. One where there was a ban on shirts saying we are not criminals to protest an immigration

bill. Another, a shirt saying homosexuality is a sin. And in both cases, the court said Tinker allows the school to say that you shouldn't wear those kinds of things to school. Do you think that's clearly wrong? So I think an opinion holding that, you know, assuming Tinker applies or even a lesser version of Tinker applies, the discipline goes too far, could counteract this trend. And it, to me, called to mind this line that David Cole, who was arguing on behalf of the student from the ACLU, said, which is he expressed the concern that students would carry the schoolhouse with them wherever they went and how concerning that would be if Tinker is in fact so watered down.

Yeah. And having now come off of a full year of my kids like literally carrying school with them because their iPads when they've been in remote school have been their school, that actually really resonated. And as I think we said last week when we previewed this case, that there is something concerning about saying schools are powerless in the face of certain kinds of destructive or harmful speech, but it is also really troubling to imagine school authorities being able to basically travel with students as they conduct their largely online lives and discipline them for the things they say that have at best a tenuous connection to school. So I totally agree with where you started, Leah, which is that this case is unlikely to make big new law. I do think they're likely to say that they're not going to cut off, tinker completely that

this on-campus, off-campus distinction is not a useful one. And it's actually kind of a meaningless construct now anyway, with students and student speech. But if they don't give a ton of guidance beyond sort of the tinker, substantially disruptive standard, I think I'm actually, I mean, there's going to have to be discretion on the part of school officials regardless. And so that kind of reaffirmation is going to, you know, leave school administrators in a position of exercising judgment and discretion. And sometimes they will go too far as in this case, they probably won't always respond sufficiently seriously in other cases. But if the choice is school, you know, principals and administrators versus like this Supreme Court, I'm actually more comfortable leaving more discretion in the hands of those who

run schools on a daily basis, you know? Yeah. Yeah. No, I would also be very happy with like the narrower opinion, given that I think this stuff is always going to be somewhat context dependent. And so better to leave it to more of like a fact specific and fact mount application. Wait, do you think there's going to be cancel culture references in this opinion? Like in some concurrence? I don't know. Yeah, no, maybe not. I don't think so.

Just based on the argument, that honestly seemed to be more of a looming presence in the Americans for Prosperity Foundation argument with Justice Thomas's questions than in this one. Yeah, yeah, yeah. But maybe they'll just shoot the moon, every single opinion. Right. Gotta say some of those burn book lines for future opinions, Kate. Can't use mom one term. That's true. But these are pretty long burn books. They got a lot of material to get through. We're going to preview just one case, I think, right? Yes. So we get to preview this case because this case was moved a bit later out of the April sitting and into this week after the court appointed an amicus to defend the decision below

after the Biden administration switched positions. So this case is Terry versus United States, and it involves an important question about resentencing under the recently enacted First Step Act. We've mentioned before that the court appointed Adam Mortara to defend the decision below. This is, as we said, Mortara's third amicus appointment and second argument as part of an amicus appointment since one of those invitations was withdrawn when the state of Georgia switched positions again. The issue in this case is who is eligible for resentencing under the First Step Act. And because it's like a complicated statutory interpretation case, I am going to rattle off kind of a bunch of history and terms, so brace yourselves. But this case is just super interesting to me. It's like

resentencing, guidelines, mandatory minimums, elements of defense. It's like everything I love kind of like in one package. So anyways, many of our listeners are probably familiar with the former 100 to 1 crack cocaine ratio that was enacted in the Anti-Drug Abuse Act. Basically, the minimum quantity of crack or powder cocaine that triggered certain penalties and specifically mandatory minimums differed substantially between crack and powder cocaine. The Fair Sentencing Act of 2010 reduced the disparity from 100 to 1 to 18 to 1 by altering the minimum quantities of crack that triggered certain penalties or mandatory minimums for cocaine offenses. And then the more recently enacted First Step Act provided for some resentencings,

including for people sentenced under the Pre-Fair Sentencing Act provisions. The relevant provisions to this case are Section 404B, which provides that a court that imposed a sentence for a covered offense may impose a reduced sentence as if Sections 2 and 3 of the Fair Sentencing Act were in effect at the time the covered offense was committed. And the key provision is Section 404A, which defines a covered offense to mean a violation of a federal criminal statute, the statutory penalties for which were modified by the Fair Sentencing Act. Okay, so the question here is whether a covered offense includes Section 841B1C, the federal criminal code. What is 841B1C, the Federal Criminal Code. What is 841B1C? Well, 841B1 provides the graduated set of penalties for different drug offenses. And the different penalties apply, as I said, based on the amount of particular drugs. So 841B1A provides penalties for people with more than 280 grams of crack. 841B1B provides penalties

for people with more than 28 grams of crack. And 841B1C is for everyone else. Okay. So again, the Fair Sentencing Act of 2010 increased those minimum quantities that triggered the mandatory minimums under B1A and B1B. And the question is, if you were sentenced under 841B1C, the kind of generic provision dealing with the possession of crack cocaine, can you get resentenced under the First Step Act? Petitioner's argument is that to reduce the ratio, the Fair Sentencing Act raised the crack quantities that trigger the enhanced penalties. And by raising the crack quantity, it altered the scope of the default provision under 841B1C, because that provision now applies to anyone who possessed an unspecified amount of crack or anyone

who possessed less than 28 grams. So they say by raising the crack quantities for the enhanced statutory penalties, it modified those penalty provisions and accordingly modified the default penalty provision. So that is their argument. And the increased penalty provisions are incorporated into the default one because it says except as provided in those increased penalty provisions, you know, 841 B1C applies. Now the court appointed amicus comes along and says, no, the federal criminal statute that has to be modified is the elements of the offense. Because when you talk about a covered offense and violations of a statute, an offense means, you know, violating a statute. And that just refers to the elements of the offense.

And because the Fair Sentencing Act didn't modify the elements of 841B1C, those persons aren't eligible for resentencing. But it did modify the elements of the 841B1B and 841B1A because it modified the quantity of drugs, which are an element of the offense. So the lower courts had framed the question as whether the modifying clause, the statutory penalties for which were modified by the Fair Sensing Act modifies either federal criminal statute or violation of a criminal statute, although that's not really how the parties are framing the case. And it's really about what statutory penalties and super fascinating case, because on one hand, I actually found the government's brief, or at least their reply brief, a little bit frustrating. They included a bunch of diagrams that were like concentric circles underscoring the point that, you know, these Fair Sentencing Act amendments altered the scope of the provisions. And it's like, okay, everyone gets that. But like, tell me why, you know, as a textual matter, you know, covered offense doesn't refer to the elements of the offense, which is what the court appointed amicus is arguing. And like, again, if you're steeped in this world, like, elements of the offense just like has some intuitive appeal as like a legal term of art that like gets used in these statutes. And so I wanted more engagement with that issue. I thought that the FPD petitioner

brief did a better job of engaging with that. And they were saying, no, when they are talking about, you know, the violation of the federal criminal statute, they're talking about like a penalty statute. And like, this is like a specific kind of statute that's like a penalty statute, because like part of the elements are, you know, described in like other provisions. And so, you know, anyways, so I just found that, you know, a little bit frustrating. And I've been mulling this case probably for like over 24 hours. And I just don't know, like what I think about it. And that's just super frustrating for me. I seriously like mapped out the statutory terms. And I was like, well, what does you know, covered offense and violation of a federal criminal

statute mean? And like, basically, can you have an argument for why, you know, 841 B1A and B offenders are resentenced? And you can because you know, court appointed amicus says elements of the offense are covered. And then I just, I wanted more. So I'm super curious about this argument. I should note that the court-appointed amicus brief goes for broke. Court-appointed amici can sometimes do this since they are not actually representing a client. Adam Mortara has done this before. So I actually first encountered Adam Mortara when he was court appointed amicus in Beckles. And I had written these, you know, law review articles about the sentencing issue in Beckles. And he addressed them in a footnote in which he called me an armchair critic of the

sentencing commission. Oh, I remember there was history. I didn't remember he actually had a footnote about you. Yeah. Okay. So, so just to like give you some flavor of the court appointed amicus brief, you know, he says, no amount of the government's or anyone else's evidence free speculation can change this. And, you know, next sentence is equally unhelpful as an amicus brief from a few retired federal judges who forgot to mention the impact or relevance of the retroactive guidelines amendments. Like that is an actual line from a Supreme Court brief that you just do not often see. And not a like, so there are weird, fringy amicus briefs that make weird claims and accusations sometimes, but like not in a brief

of somebody who's going to actually argue before. I mean, I was gonna say not in a party brief, but he's not a party exactly, whatever he is, he's an amicus and he's going to actually argue before. I mean, I was gonna say not in a party brief, but he's not a party exactly, whatever he is, he's an amicus and he's going to have argument time. That is unusual. Yeah. And I should note that like, he also accuses the government and of armchair psychologizing as well.

So it's both me and the federal government that do it, that do the armchair engagement with these issues. At another point, he says, you know, the government is now basically buying what Terry is selling, you know, in a drug possession case. I just think that's an interesting turn of phrase. But super fascinating case. Two quick additional thoughts on Terry. One is obviously this case is about statutory interpretation. But as the government's brief, and I think the petitioner's brief to a lesser

extent underscores, it's also partially going to be about policy. Like, why would Congress have allowed for resentencing for 841B1A and B offenders who possessed more crack than lower level offenders? Right. And not for the people with much smaller quantities. It makes no sense. 1A and B offenders who possessed more crack than lower level offenders. Right. And not for the people with much smaller quantities. It makes no sense. Right. And you would think that since everyone thinks and this court insists that this is a court of textualists, that wouldn't be as much a part of the briefs or the arguments. But I am not convinced that it's actually a bad strategy to put that in the briefs, given that we saw in the Confederated Tribes case involving ANCs,

as well as I think, you know, the dissent in Nis Chavez, the case we were just talking about, policy arguments are still front and center on many justices' minds. Like that is just part of how they understand the text. They want to know, does this make sense? And how would this have made sense to the people enacting it? And so it's just this continued oddity where a lot of the work being done in these cases at argument and in the briefs is about these policy arguments, even though I think the final opinions are very much focused on formal textualism. But it will be kind of an

interesting thing to see how the different justices possibly split in this case, you know, given those issues. But your general point is that actually advocates really shouldn't discount the importance of continuing to make these policy arguments because they do resonate with some of the justices. Even the really textualist ones in sort of quiet ways sometimes do actually care. And it's a disservice not to at least spend some time developing those arguments, you know, because you've decided that the arguments from text are the only ones the justices care about. Yeah, I think that that's totally right. I mean, maybe someone like Justice Gorsuch truly doesn't care if he thinks, you know, an interpretation serves no purpose whatsoever. But I would not put the Chief Justice, Justice Kavanaugh or Justice Alito in that category at all. And so I think, you know, given that you

got to get to five somehow, right, it would be a mistake not to include those arguments, even though, you know, the end result might not reflect them. Yeah, I think that's a great point. The last thing I would say is just my friend Adam Mortara has literally come out of retirement. He was formerly a partner at Bartlett Beck to argue this case and pursue his true passion of arguing that the government is being too lenient in resentencing criminal defendants. So passion projects. We all have our passions, Leah. Right, exactly.

His burn book is all about all those times the federal government consented to resentencing. And he used a bunch of those lines in this brief. So there you go. Totally. Yeah, I just, I don't know. This case bothers me. I find it super interesting. And I will be listening to

the argument in real time. Definitely. This conversation is making me wish that the court, there was some mechanism by which the court could appoint you. Even though there's two people already taking the position that I think you want to take, although I'm not sure you're exactly positive how to get there. But it just feels like your perspective is gonna be missing from this argument. So hopefully the justices will listen to this podcast. I think if they ever appointed me an amicus in a sentencing case, I would have a really hard time not interrupting the justices because I just like, I get so excited about these issues that I would be like, but actually Justice Gorsuch, like I'm just, anyways.

I would love to watch that. Listen to it, whatever it is we're doing, if that ever happens. But actually, I feel like the sentencing commission is a good segue to the last thing that we wanted to talk about, which is that we had our first hearings for Biden judicial nominees. So these happened at the same time that the Mahanoy arguments, the cheerleader arguments were occurring. So it was like this kind of cornucopia of good audio content. So you had, I don't know about you, but I literally had, I had them both going, I was toggling between them. And then there were certain senators who would ask a question, and I would just turn the sound off and go back to them. Because I was going to do Mahanoy and then switch over, but then it went so long that I started to double screening, which probably meant I didn't do a great job of actually

taking either in. But I definitely saw and heard enough of the morning confirmation hearings of Judge Katonji Brown-Jackson, who's currently on the district court for the District of Columbia, who's been nominated to the D.C. Circuit, and Candace Jackson-Akumi, who's been nominated to the Seventh Circuit. And what I saw is that they were both just so smart and impressive and should be confirmed easily. And I don't know if Judge Jackson was asked much about sentencing, but sort of to your point that people who don't care about, say, the Armed Career Criminal Act have no business on the federal courts. I think the same is true of criminal sentencing. And I think it is so great that Judge Jackson not only has this,

you know, extremely impressive record as a district court judge, but was a commissioner on the Sentencing Commission and has deep expertise of the sort that few do on the federal bench in matters of criminal sentencing. And so I just think that's another kind of amazing attribute that she brings to the job of sitting on the D.C. Circuit, which I hope she will soon be doing. There were also more judicial nominations the morning after, you know, President Biden's address to Congress, two in Washington state and one in New Jersey. Two, I think, district courts that are reportedly extremely understaffed and in desperate need of judges. So hoping that this is, you know, a sign of a continued commitment and interest from the administration and judicial nominees. And the very last thing we wanted to mention was we are recording this podcast the day

after President Biden's first address to Congress. I noted there was a lot of really great and important content in the speech. He did not mention the Supreme Court, but there was a Supreme Court representative present at the Capitol for the speech. So, you know, typically some subset of the justices attend the member of the court there. As I understand it, he was the only one invited because of the capacity limits, right? They really did implement social distancing limits. So like the cabinet, for example, wasn't there at all. And only Chief Justice Roberts was. And did you catch that? I only saw the still, I didn't see the moment on video. But there was like a little bit of a like greeting and like close conversation short but kind of warm seeming between President Biden and Chief Justice Roberts what do you think they were talking about Leah Sam Alito's skincare routine Biden skin looks good I mean not Sam Alito good but but good Roberts could probably get a little bit of that cream going. That's one possibility. Another possibility is what's in your burn book, John? I want to know. Yeah. I mean, it does seem like the two of them are probably aligned in certain respects with how they would prefer the new

conservative majority to rule on certain matters. So, you know, maybe they were doing a quick like, you know, strategy session. But I, you know, I think skincare is a good guess. So we can go with that. Yeah. Thank you all for listening. Thanks to our producer, Melody Rowell. Thanks to Eddie Cooper for making our music. Thanks to Sam Alito and Lisa Blatt for enthusiastically listening to the show. If you'd like to support the show and continue getting this show into their ear holes, you can sign up to become a Glow subscriber at glow.fm forward slash strict scrutiny.