Strict Scrutiny - Busting Unions and Dodging Opinions

Episode Date: January 16, 2023

Kate, Melissa, and Leah recap the Supreme Court's the first oral arguments of 2023, which includes cases about union labor laws, attorney-client privilege, and Puerto Rico's sovereign immunity. Plus-- some theories about why the Court hasn't issued any opinions this term, and some breaking news in the investigation over the leaked Dobbs opinion.Listen to our past episode on the 303 Creative v. Elenis case that's mentioned this week.Listen to this episode of America Dissected which features Melissa. She discusses the COVID-19 vaccine mandate cases argument that's discussed in this week's episode. 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. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Leah Littman.

And I'm Kate Shaw. And the court started off the new year with a light January, maybe also a dry January, though the jury is still out on that. We have yet to receive reports on Sam Alito's do-iness and or puffiness. On the point of a dry January, though, we did receive some listener feedback that suggested perhaps I had been too dismissive of the entire concept of dry January. And so I felt in the interest of being inclusive, we should update the name of our recurring segment for those of you who are observing a dry January. And so rather than focusing on the alcoholic content of particular beverages, that would be an homage to our favorite SCOTUS spouse, Virginia Lam Thomas. For this month, at least, our regularly occurring

segment is going to be known as the Virgin-y Tonic or the Virgin-y martini or the Virgin-y juice. Get it? Like all virgin, all mocktails, no cocktails. I feel so vindicated by this listener comment and also a little bit mad that we didn't think of these names. These are good names. I like where your head's at. They were. I'm unwilling to commit to Virginia Thomas being our favorite SCOTUS spouse. I think Martha Ann is really making a stealth play. And again, I'm unwilling to commit the air of Martha Ann erasure. So we're still in the market for clever Martha Ann segment names if any listeners would like to offer those. And in a very different spirit, any homages to Patrick Jackson are always also welcome. Although again, in a very different spirit. He's our actual- Talk to feel good Patrick Jackson.

So based on some of the dynamics at the arguments last week, it might be that some of the justices are actually doing a dry January. More on that in a second. This past week, the court heard oral arguments in the cases we previewed on the last episode. We are going to recap those cases in this episode. And as with last time, we'll focus most on Glacier Northwest versus Teamsters, the case about the future of the right to strike. And then after we do the other recaps, we will turn to some court culture. Okay, so let's get right to it. So first up, as Leah said, Glacier Northwest. And to recap, this is a case about whether or in what circumstances an employer can sue a union for damage resulting from a strike. Now, under the court's precedence, state courts are not supposed to entertain tort suits for labor actions if those actions are

protected by the National Labor Relations Act. And that statute, the NLRA, protects workers' rights to engage in concerted activities for the purpose of collective bargaining, and also explicitly protects the right to strike. So under the court's precedence, state courts are not supposed to entertain tort suits when the conducted issue is protected, or even if it is arguably protected, at least until the National Labor Relations Board, a federal agency that implements the federal labor laws, determines whether the activity in question is in fact protected. The court's cases also make clear that unions have to take reasonable precautions

against imminently foreseeable harms resulting from a strike. But of course, all of that is supposed to be determined in the first instance by the NLRB. So here, Glacier Northwest filed a tort suit against the union alleging that workers stopped work while concrete was still in the trucks. And the concrete, which was being mixed, actually hardened because no one was doing the work. And that rendered the concrete unusable. The Washington state courts dismissed the suit, finding that the activity was either protected or was arguably protected under the act. Now the employer is seeking to cabin the court's precedence that safeguard unions against the risk of these kinds of tort suits for labor strikes in one of two ways. So the first way would be a rule that says that

employers can recover for damage to certain kinds of property. This rule would require distinguishing between property that's inextricably bound up with labor from physical or real property, or maybe it would distinguish perishable items from the physical structures in the workplace, so it's not quite clear. The other possibility that the employers are floating is a rule that would say that employers can recover for certain intentional forms of property destruction. Either of these rules, however, would expand the universe of tort litigation that unions would have to defend against in state courts. So neither rule is particularly good for the union. And Noel Francisco, who is Trump's former Solicitor General and now, wait for it, a partner at Jones Day. Surprise! Cal surprise! Shocking. Yeah. So Francisco,

who was arguing for the employer, he could barely... Also a surprise. Also a surprise. Being at Jones Day and arguing for the employer, I just thought were basically duplicative, but wanted to spell it out for clarity. Anyways, Francisco could barely conceal his at a minimum disinterest in and maybe even disdain for answering the Democratic appointees questions at the oral argument. So here's one example of this phenomenon. So I don't know why you're answering Justice Kagan. You want something further. You're saying you as an employee have to continue an employment duty with me until all of my profits are safe. That's what I see. Not in the slightest. Am I suggesting that, Your Honor? And here's another that was directed at another Democratic appointee.

Just because there's going to be a dispute about whether or not they should step aside, not because they inherently are the ones to make that determination. Sure. And I think that the way I understand Garmin, at least, is that... Here's another clip of Noel Francisco suggesting that Justice Kagan, who enjoys life tenure as a Supreme Court justice, maybe shouldn't have interrupted him. It seems very artificial. You know, you find the facts until you face the dispositive question of how the facts fit the law. Sure. And this is my second response to your question. I don't understand. At Trump's Supreme Court, only Trump nominees get to ask the questions or only get to talk, apparently. Just because we could keep going, here is another clip of him plowing through Justice Sotomayor's questioning because he just wanted to finish his sentence.

I think it's because we'd be taking the extraordinary step of ousting a state court of jurisdiction to adjudicate a state tort complaint that on its face alleges facts that is all agreed aren't even arguably protected. We'll talk about the substance in a moment, but I was really pretty shocked by some of this. It was almost as though he was just kind of like broadcasting to the justices and to the world, like everyone knows it doesn't matter. I don't need your vote. So why are we wasting our time even engaging? Like it was just I mean, that was kind of like not quite explicit, but pretty close. We will talk about in a second about how the formalities of law and legal argument were also largely dispensed with during the course of Francisco's argument. But I think other conventions, you know, that have typically been adhered to at

the Supreme Court have also been on the way out over the last two years, including, you know, that have typically been adhered to at the Supreme Court have also been on the way out over the last two years, including, you know, feigning any interest in answering the questions of justices who you've written off because they were appointed by the president of another party. So leaving aside this big DGAF energy for a minute, let's get into some of the nitty gritty here. And it's worth stepping back and putting into focus Noel Francisco's general themes or principles that he was asking the court to use in order to resolve this case in the employer's favor. And that general principle, or at least one of them, seems to be something like

preemption is bad, really, really bad. So here's a clip of that. The stake is that you preserve, one, the state's traditional authority to adjudicate tort claims. Preemption is a big deal. That's why we don't just assume preemption willy-nilly. And there are rules that make clear that preemption applies when certain clear statements are made. Preemption is where federal law, a federal statute displaces state law. And I guess preemption is bad unless the preemption involves federal arbitration act claims involving arbitration. That's good preemption. That's good preemption. I think another kind of good preemption would involve where federal law prohibits lawsuits against drug manufacturers. There too, it's preemption good.

And this, of course, makes sense and is totally principled. Right. So to be clear, federal labor law preemption bad. So that is one kind of big theme, preemption in some circumstances and certainly in the context of labor bad. And another big theme in the employer's argument was something like administrative state bad, right, which, you know, Neil Gorsuch was obviously salivating over. And to be clear, in contrast to his dismissive but largely subtextual dismissiveness toward the Democratic appointees on the court, this was this administrative state bad theme was basically in the words that Francisco said to the justices, like in this clip. You know, frankly, we'd prefer not to be before an administrative agency where the agency is the

judge, jury, and executioner. We prefer to be in a court system where we have a neutral judge and the potential for a jury. I mean, listening to this part of the oral argument, I was like, right, this is a dream combo for the conservative supermajority on this court, because this case offers up the opportunity not only to further undermine unions, but to do so while disparaging and potentially really disempowering a hugely important federal agency. The Venn diagram of real Gorsuch sweet spots is very, very strong here. Yeah. And honestly, they have the same opportunities in the other labor case we will discuss in a second. But this was the example I was thinking of where I guess, you know, the advocates, or at least the Republican advocates no longer even feel the need to couch their

arguments in ostensibly the language of the law or law adjacent terms. We're just throwing out administrative state bad guys. We're on the same team at oral arguments. And this is now, you know, the register in which legal argument takes place. Well, I also love the neutral judge while you actively shop for fora that are receptive to your claims. And then ignore three of the six justices before whom you are arguing at this very moment. They're not neutral. They're basically agencies. They're agencies. And so they're bad. Right. On to some of the more granular arguments. At some point, Francisco, who again is arguing for the employer, seemed to be saying, at least let the state courts decide the facts. And then if, based on the facts as found by the state court, the conduct is arguably protected by the NLRA, then the litigation in the state court should be paused.

All right. But there are a couple of reasons why the court's cases don't exactly say this and why it wouldn't be a particularly effective way to read the court's cases. And one is, as Justice Kagan pointed out, it's not entirely clear why there should be a sharp distinction or whether there could be a sharp distinction between law and facts in these circumstances and whether that would even make sense with respect to allocating authority between the state courts and the NLRB. So here she is on that point. Why is it that there is such a sharp distinction in your mind between the legal questions and the factual questions? I mean, I suspect in most of these cases, what is going to happen in the end is that the critical question is going to be a mixed question of law and fact. And whoever is the decision maker is going to have to figure out what the appropriate law is

and is going to have to figure out what the appropriate facts are and apply the one to the other. And I would think that as a controversy gets more and more factual, you might think that that's where the board's expertise more and more comes into play, because the board has seen like a thousand of these strikes in a different way, like a general court sees once every few years they get a case like this. The board has seen thousands of them and can fit a case like this into a broader map of strike conduct and what's protected and what's not. And it would seem that if the idea of Garmin is a little bit of an exhaustion idea, first bite idea to get your expertise, your special expertise, it should

apply all the more so in a case where there are also factual issues at stake. This statement seems like a very clear and really important defense of agencies and things like expertise. Her earlier question slash comment we played where Francisco interrupted her earlier in the episode was also about this idea, the artificial nature of the distinction that Francisco was trying to offer between matters of law and matters of fact. Another reason why this distinction between law and facts doesn't make total sense is, as Justice Sotomayor pointed out, this case was decided on a motion to dismiss in the state court proceedings. And at that stage in a case, there isn't really fact-finding that's done by

courts, though that, of course, is slightly complicated by the fact that this issue, whether the conduct is protected, is jurisdictional. It goes to the court's authority to hear the case. So some fact-finding happens even at the motion to dismiss, but not the kind that usually involves a lot of, say, collecting new facts or resolving factual disputes, which happen later on in a case. And to gill the lily a little bit, the state court isn't even acting in isolation here because, as we noted in our preview, the National Labor Relations Board actually issued a complaint, which up until now has signaled that the union's activities are at least arguably protected under the NLRA. And Justice Kagan brought this up. Let's roll that clip. I see. But to go back then to Justice Sotomayor's question,

if the board now has done an investigation into this matter and has a different view of the facts than your client has, what is the relevance of that in the state court proceeding? I would think, as Justice Sotomayor was suggesting, that that's where, well, it becomes appropriate to say, no, now, you know, something has changed. So one of the more revealing exchanges happened between Noel Francisco and Justice Barrett. And in that exchange, Francisco took the position that even if the NLRB, the board ultimately concluded that the union's activity was in fact protected and that the employer's suit was retaliation for the union's protected activity, the lawsuit could proceed in state court anyways. So let's play that clip here. I take it that your position means that if

the board beats the state court to it, let's imagine that here the board concludes its proceedings first and decides that, in fact, your client had engaged in an unfair labor practice. That doesn't bind the state court. The state court can go on and continue to resolve the facts a different way. I think that's right, Your Honor. Our position is essentially the flip side of the governments and the unions. So now the employer's position seems to be that state courts get to ignore the NLRB, the board, instead of pausing and waiting for them. It's just an agency, Leah. It doesn't mean anything. It's judge, jury, and executioner, and it should all be dismantled. It's more of an abstract entity, agencies like the state of Texas.

And this would also mean, of course, that unions are just subjected to a possible endless stream of litigation, even when the board says these lawsuits are in retaliation for protected activity. I know you two thought this was a real downer of an oral argument. There was big, big labor is going down energy here. And I don't want to minimize that. But there were some humorous exchanges. And again, I'm always looking for the bright side of these things. So as we slip into

an abyss where workers don't have any rights at all, let's think about some of the humorous exchanges that happened along the way. So here's one. Tell me how to write this decision. I'd suggest copying our brief, Your Honor. I know, but your brief was whatever number of pages, 30 odd pages. Give it to me in two paragraphs. Summary of the argument. Now, that was so funny because we know they're not going to write this opinion like that. But I loved it. Good one, Sonia. I loved it. And I love the cheekiness of the response.

So I think that's actually a good segue to, you know, moving into the more fully downer slash defeatist segment of our discussion. that the court's Republican appointees are leaning in a direction of doing something that is very bad for unions and for their ability to strike without incurring potentially crushing liability or at least litigation. Now, that wasn't a big mystery going into the argument, but it was pretty clear coming out of it. And, you know, during Francisco's argument, the Democratic appointees definitely showed up to work, poked holes in the employer's argument, made clear why the employer's argument is inconsistent with the court's cases, doesn't make sense of the federal statutory scheme, and so on. Those are some of the clips we played, you know, the justices saying that you can't separate facts from law, etc., etc. So they were definitely doing the work in that portion of the argument. But then, and at this point, I was

slightly puzzled, but more so sad. It seemed like during the Solicitor General's argument, you know, the federal government's argument, that is, and the union's argument, it felt like Justice Jackson, as well as Justice Sotomayor, at some points, abandoned any hope of, duh, the union should win, and abandon projecting that at the argument and instead focused on strategies for limiting the scope of the employer's eventual victory. Can I, like, doesn't this remind you a lot of what they were doing in 2017 around free exercise, like with Trinity Lutheran and sort of that weird appeasement strategy. And that works so well, right? That's what I was going to say. So the appeasement strategy is just make it less terrible, like just make it more incremental

and not let them sweep everything off the board. But they're going to sweep everything off the board eventually. You're just delaying the inevitable. Yeah. And you compare that appeasement strategy to some of the behaviors by some Republican appointees or previous Republican appointees on the court, like take Justice Scalia, for example. You know, was he ever whimpering and begging at an oral argument for Justice Kennedy to temper his absolutist impulses? Or was Justice Scalia ever going on the attack at an argument, you know, against the side he was sympathetic to,

to get them to concede or agree on how they should lose in an alternative way? I don't think so. And I don't want, and I'm not saying that the Democratic appointees should emulate Justice Scalia in all things. I think some of his behaviors were not judicious or appropriate. But I do really want them to press the best argument for the side that objectively should win, not search out less bad ways for them to lose. Like, there needs to be a voice, multiple voices at the court, pushing and pressing these arguments so they have more force. And maybe that's unfair of me. Obviously, I understand, right? They are in a difficult role in a different job, but it's just such a different approach to argument. And yeah. So let me play devil's advocate here. I mean, even limiting the force of this opinion could be important for organized labor, at least in the short term. It's not going to fix this and there will be an incremental strategy to eventually get to whatever the end game is here. And they'll get there eventually. It just may take some time. But in the meantime, there are still a lot of people who are in organized labor whose lives may be impacted

by this. And I imagine that's probably something that they're thinking about. But I hear you. A really strong and forceful dissent that gives no quarter would be really welcomed here. But I think they're probably thinking about what the real world impact of this is going to be on working people. I'm sure. And I do think there are sort of short-term, long-term trade-offs here. I think it's right that short-term blunting the force of what might otherwise be a really radical opinion makes a lot of practical sense. And I agree with Leah, these are hard considerations that they're all sort of, I think, trying to navigate. But I also do think that Manny Pastrana, who we had, the current head of 32BJ, made, I think, the really important point that we are at this moment where you have

these very high levels of support for labor unions, people want to join unions, you have all of these, you know, both strikes and newly unionized workplaces. And I do think that calling the court's radicalism out for what it is, and also, you know, maybe having a galvanizing effect on the public in terms of illustrating the just widening chasm between public views about unions and this, you know, small majority or super majority of the court actually could be incredibly important and constructive and ultimately really good for organized labor. But I think these are really hard trade-offs and I don't envy them having to decide how to kind of weigh them.

And just to underscore a little how I'm thinking about this, I do not object to them, say, trying to float, you know, a draft or revisions to an opinion, right, that would blunt the effect and prevent some of the costs to unions in the short term. But I also object to a strategy that takes the gas out of public perception about the existential threat that this court poses to unions, to labor, and to democracy. And if you're just gonna be like, I don't want to say wilting violet, but if you're not going to be fighting that fight and like pressing that case at an oral argument, it just feels like a missed opportunity for me in important ways. You know, maybe you have questions about whether, you know, a possible narrower loss would

in fact be narrower, in which case, ask that once, but don't say like, press the case about why you should lose this way, why you should lose this way. Didn't you fail to do that? Didn't you fail to do that? Because that's what it felt like they were doing sometimes where Justice Sotomayor was, say, trying to get the union to agree that they hadn't introduced contrary facts to argue that they had taken reasonable precautions. Or Justice Jackson, at some points, seemed to want to say, well, look, concrete is kind of like a perishable item. And therefore, this was a foreseeable cost of the, you know, walk off and

labor strike. And, again, like, if you think those are narrower approaches, maybe ask the union or the federal government if they were narrower approaches, but then maybe not spending as much of the time like pressing the lawyer for shouldn't you lose this way? Yeah. And, you know, I would say that that approach that you're describing, Leah, of the kind of measured, asking tough questions of both sides kind of approach to the Democratic appointees stood in really sharp contrast with, say, the vibes in a case like 303 Creative, where the Democratic appointees were going very hard after the lawyer for Lori Smith, the individual who wanted to design wedding websites only for opposite sex couples. The lawyer for Smith had like six co-counsel up with her on the bench, right? The conservative justices were basically all arguing her case with her and for her. Kind of doing a better job too. Kind of. Oh, definitely. And so, you know, there were definitely moments in this argument where

Justice Kagan seemed to be doing just that, right? Really trying to help the union lawyer out. So maybe let's play one of those clips here. I hear you saying is that the focus on intent is wrong. Because workers unions do things all the time intentionally to maximize economic harm. You know that if there's a seasonal component of a business, workers will try to time their strike in order to maximize the economic harm because more of the business is conducted in the summer than in the winter. Things like that, that there are all kinds of things which are perfectly intentional to maximize economic harm. And so you're saying that when we start focusing on intent without more, it pulls in pretty much, you know, every strategic decision that a union makes as to when to conduct a work stoppage. One other thing to mention that I found

really dispiriting about the argument was that the Biden Justice Department was not exactly robustly defending this union or even its agency, the NLRB, right? So this was in the briefing as well, but it was somehow kind of different to me to hear it. So the assistant arguing for the federal government in support of neither party, basically asked the justices to send the case back to the state court, right? You know, said, as we noted in our last episode, that yes, the right to strike is protected by federal law. And again, that is explicitly in the statute. So no one gets a cookie for that. But here, the position taken by the federal government was that based on this complaint, this conduct was

not arguably protected. And the Solicitor General's Office also took the position that the court shouldn't consider the fact that the NLRB had issued this complaint against the employer. And honestly, I found that really difficult. So it was like not having the full-throated support of the Democratic appointees on the court or really of the federal government either. And so the union was a little bit, you know, without a lot of reinforcements and it showed. So maybe we should move on to another case where things are also going to go badly. So let's go to In re grand jury. Yeah. Not so badly, actually. I wouldn't do it that way. I think it's fine. I'll get more into my own views about what happens when the Supreme Court decides to get to mathing, but here we go. In re grand jury is a case about the scope

of the attorney-client privilege over so-called dual purpose or hybrid communication. So those are communications that may have both legal and non-legal purposes. And as we noted when we previewed the case, the overwhelming majority of courts of appeals have determined whether these communications are privileged by applying something that they call a primary purpose test or the primary purpose test. Under that test, where the primary, i.e. the predominant purpose behind a communication is to obtain legal advice, the communication is protected, privileged. But where obtaining legal advice is subsidiary or ancillary to some other purpose, the communication would not be privileged or protected. So here the petitioner seemed to be asking the court to say instead that communications

should be protected if a significant purpose behind the communication was to obtain legal advice. And a significant purpose, it seems after the course of the oral argument, is different from a primary purpose in that a significant purpose means something like an important purpose or perhaps, as the petitioner's lawyer at times suggested, a legitimate or good faith or bona fide purpose. But that would cover more communications, right, since communications would be protected even if another purpose predominated, whereas again, under the primary purpose test, these communications are protected as privileged only if the primary purpose was legal advice. And a good amount of time at oral argument was spent kind of trying to unpack differences and distinctions between the different tests that courts are using, sort of primary purpose and the test that the petitioner is advancing, significant purpose or

good faith purpose. So some of the justices here really wanted to formalize into some kind of mathematical formula these tests. And again, I'm reminded of the antipathy that this court had for something like the trimester formula in Roe versus Wade. And so I think it's really interesting that they got this whole mathematical thing that they're really into now. But that's fine. Or say math and partisan gerrymandering. Amazing. Like can't figure that out. No math in here.

Numbers bad. Numbers bad. That was the sociological gobbledygook, right, is how the Chief Justice referred to it. But, you know, sociological gobbledygook is totally fine in this particular context. And it reminded me, even though Justice Kavanaugh wasn't really doing this, but there's this incredibly annoying law review article that Justice Kavanaugh once wrote about statutory interpretation. It's actually a book review of a book by the late great Judge Robert Katzman about statutory interpretation. And in this review, Judge Kavanaugh, then Judge Kavanaugh, spends all of his time trying to quantify statutory ambiguity with percentages. So there's this passage, for example, where he says, I tend to be a judge who finds clarity more readily than some of my colleagues, but perhaps a little less readily than others. That is some sociological gobbledygook.

In practice, I probably apply something approaching a 65-35 rule. In other words, if the interpretation is at least 65 to 35% clear, then I will call it clear and reject reliance on ambiguity-dependent canons. I think a few of my colleagues apply more of a 90-10 rule, at least in certain cases. Only if the proffered interpretation is at least 90-10 clear will they call it clear. By contrast, I have other colleagues who appear to apply a 50-50, 45 rule. Okay, sir. Again, the math ain't mathing here. What does that even mean? It's such an insane passage. The math ain't mathing. That's all I'm going to say. So perhaps unsurprisingly, one of the justices looking to impose this numerical certainty was

Justice Gorsuch, who, if you can recall back to the partisan gerrymandering cases, likened the reliance on numbers as a little pinch of turmeric and a little bit of this and that on his steak rub. But here, of course, numbers are good. So let's play two clips of him here. With the 60-40, just help me out with this, OK? I'm just struggling. I'll be honest. I'm struggling this morning.

60-40, you say, is good enough. That's primary. 40% is primary. That's not primary counsel, right, legal? But it's significant. So, Justice Gorsuch, perhaps my mistake was attaching percentages to this. Well, that's not your mistake. We did that to you.

I was trying to make the point that judges don't do math. I was trying to agree with Justice Jackson. That's not how district courts are actually thinking about it. Well, but sometimes they do. In this clip, you can also hear Justice Jackson's interjection agreeing with Masha Hansford, who is arguing on behalf of the Solicitor General in her characterization of what the district courts did here. Hansford, I thought, did a really fantastic job in explaining the difference between the primary purpose and significant purpose tests, and also in resisting some of the justices' efforts to impose some sort of numerical formula

and to harden into some kind of pseudoscientific principle the tests that the courts have currently been using. And here too, throughout this argument, Justice Jackson's experience as a district court judge really seemed incredibly helpful and valuable. So as a district court judge really seemed incredibly helpful and valuable. So as a district court judge, she's done evidentiary hearings and assessed privilege claims. So she really could talk about and bring color to what that inquiry actually looks like and how it operates in practice. And again, she's not the only district court judge on the bench here. Justice Sotomayor spent a lot of time at the district court as well. But it's notable that this experience is on one side of the bench here. On the other side of the bench, Justice Gorsuch seemed quite committed to trying

to take things out of the real world and into his pretend abstract mathematical pseudoscientific formula world in this second clip as well. Okay, so it has to be 51%. No, no, I am really confused now. All right. So again, I think this case was like really kind of fakakta because of all of the math vibes going on here, especially as Leah and I pointed out, like there hasn't been the same interest in math and other contexts. But what was actually very striking about this argument seemed to be the justices' utter lack of appetite for being complete and total chaos agents here. So they did not bring their characteristic low-key energy to this argument. They didn't seem interested in shaking things up or doing away with what appears to be a pretty rough and loose consensus among the courts

of appeals in order to assess these attorney-client privilege claims. So it seems like the outcome will be stasis, perhaps with some clarification about the test, probably with some numbers. But for the most part, I think we dodged a bullet here. But again, I hate it when they do math. This is not how, whatever they're doing, this is not how you're supposed to math. Math ain't math. I don't think, for whatever it's worth, I actually don't think they're going to try to include any math in the opinion.

I think they were just sort of trying to give the advocates a difficult time with sort of imposing these percentages. But I really hope- Because they know that everyone took the LSAT and not the GMAT and they're just like, let's just fuck with them. Because we're on this side of the bench and we can. Yeah, I think it was more in that spirit. Yeah. And, you know, on this stasis energy, it was kind of shocking while also refreshing to hear the court acting like we hope or expect courts would act, you know, with caution and

with hesitation to just dramatically refashion the law in one fell swoop. You know, restraint is a judicial virtue, although you wouldn't necessarily know that from following the court's work. Judge, jury, executioner. The best encapsulation of this rather atypical attitudinal orientation the court brought to this argument might be the following clip from Justice Kagan, which we'll play here. I'm wondering if you would just comment on, you know, the ancient legal principle of if it ain't broke, don't fix it.

Yeah, so I think it's right. The court seems basically fine with what the states and the federal courts have been doing, and it's unlikely to disrupt much in this opinion. And just maybe briefly at the end to go back to Masha Hansford, the lawyer for the federal government, she had this funny quip that we also wanted to play. And we do not intend to disturb that body of case law. I think it would be fine to say that too, but whether a long opinion or a short opinion

in our favor, we don't have a very strong position on that. The bottom line on this case seems to be that the court is unlikely to disturb the rough consensus for how courts have reviewed claims of attorney-client privilege over so-called dual-purpose or hybrid-purpose communications. And the court will probably sign off on some version of a primary purpose test, maybe with numbers, maybe without. Who knows? And as the oral argument made clear, the set of cases in which this issue could be especially relevant is often internal investigation cases, which came up a lot in the oral argument. So cases where a company does some kind of internal investigation and lawyers are involved. So in these investigations, there are often both legal and non-legal reasons for

communicating with lawyers. And this is a growing area of law, especially in workplace culture or discrimination scenarios. But again, it doesn't seem like the court is likely to change whether and when those communications are ordinarily protected. The next case we wanted to touch on is Ohio Adjutant versus Federal Labor Relations Authority. So we went short on this case last episode, but we're going to try to avoid doing that here. This is the case that is the second in the pair of labor cases and administrative agency cases the court heard this week that run the risk of dealing another blow to organized labor unions workers rights and economic justice as well as the authority of administrative agencies so the case generally concerns how or whether the federal labor relations authority applies to structure the collective bargaining rights of so-called dual status

military technicians who work in the Ohio National Guard. The National Guard is a hybrid state and federal structure. Federal and state laws specify the Guard members' duties, their obligations, as well as their rights. So Guard employees have been unionized for 45 years, and the Guard and the union had a few long-term collective bargaining agreements. But the Guard didn't renew the agreement a few years ago. And in declining to renew the agreement, the Guard told the union that it was not bound by any provision of the expired agreement. The Guard did some other things, too, which led the union to respond by filing an unfair labor practices charge with the Federal Labor Relations Authority. Among other things, federal law doesn't permit union dues to be deducted from pay without an employee's authorization. So the FLRA issued complaints saying the Guard refused to negotiate

in good faith. An administrative law judge agreed that the Guard was in violation of a statute, the Federal Service Labor Management Relations Statute. At the Supreme Court, the Guard isn't arguing about whether it complied with the terms of the statute. Instead, its argument is that the Civil Service Reform Act doesn't apply to members of the National Guard because those members are part of state agencies, not federal agencies. The Guard is also making a related argument that the agency cannot enforce the statute against the Guard, but would have to do so against some other entity, maybe the Department of Defense, for example. Again, because the Guard is a state rather than a federal agency. So to be really clear, this case has the exact opposite energy of NRA grand jury. So in NRA grand jury, it was like,

if it ain't broke, don't fix it. But here it seems like if it ain't broke, you should fix it anyway. The YOLO court is back, baby. It's back. Let's just do it and be legends. Again, it's true that the National Guards have been negotiating with employees subject to the Civil Service Reform Act for five decades. But don't let that stop you. Let's start with a clean slate and pretend that that never even happened for the last 50 years. Almost like Dobbs. So anyway. And indeed, Justice Sotomayor picked up on this kind of energy as well, expressly invoking Justice Kagan's statement from in re grand jury.

So here she is. I'm going back to Justice Kagan's venerable rule. If it ain't broke, don't fix it. And we know that it hasn't been broken because either under the executive orders for decades, National Guards did go through the administrative processes as the name responding party. Now, this issue and the case generally is pretty technical. And I think it might not be clear whether the rule that Ohio is seeking, which again, is that the state guard isn't subject to the Federal Labor Relations Authority, it might not

seem apparent whether Ohio's rule will affect what rights workers actually have. But at the argument, Justice Sotomayor surfaced how Ohio's rule could actually affect the substantive rights and protections that workers in, you know, National Guards have. So let's play that clip here. So what instead you're arguing now is it's a fair victory because they kept collective bargaining rights. They could have it against the Department of the Army, but they can't enforce it against anybody. Not Pyrrhic in any way. They can enforce it against the Department of Defense.

Well, but you're telling me the Department of Defense can't sue you for it. That's how you answered Justice Barrett. They cannot sue us. They can just use other pressures, but they can't have any enforceable right against you in court. Right. So, of course, my first answer is we're stuck with the law Congress passed, whether or not it makes sense. But I think that does make sense. I agree with you. You and we are stuck. Yeah.

Just to underscore the practical implications that I think she was drawing out, you know, Oh, I agree with you National Guard and that entity, the Department of Defense, because they're not the actual employer, doesn't have control over employees' day-to-day duties, or at least all of them. So Ohio would introduce a third party into these, you know, negotiations or litigation, you know, rather than allowing employees to sue the actual employer. And a part of me wondered if this is what Justice Kagan had in mind when she made this, I think, funny observation about Ohio's argument. So Ms. Reeves, as I understand General Flowers' argument, I'm not sure I did until this argument, but he says he agrees that these employees have collective bargaining rights. He agrees that that

means that somebody has to be across the table. But he says it's you that has to be across the table, the DOD, and, you know, by virtue of the definitional sections. And he says, you know, there's no requirement that you do this nationwide. You can just do it for Ohio. Now, I'm not sure why Ohio would want you to bargain for them, but apparently Ohio does. And I guess the question is, what would that scheme look like? And it was one of these things that was both funny and like really serious, right? Because it is almost as though what she is saying here is that it makes literally no sense that Ohio wouldn't want to negotiate for itself on its own behalf, unless, of course, ding, ding, ding, forcing the employees to negotiate with someone else actually means you're not going to force Ohio to do anything at all. And maybe that's what's really at play here. It's like glass onion type stuff. I love that.

Love that movie. Of course, I've not seen that movie. But I hear it's great. So Justice Kagan also neatly explained why Ohio's argument is wrong as a matter of statutory interpretation, right, as the only genuine textualist on the court. So let's play that clip here. And this statute gives collective bargaining rights to these employees, and you acknowledge that. And this statute also says that with respect to these employees, and this is a kind of sweet, generous situation, the federal government is not acting as their employer. Instead, the federal government, per the statute, has the individual state guards acting as their employer, supervising them, hiring, firing them, and so forth. So then the question becomes, so who's supposed to be sitting across the collective bargaining table with them? Because we know that there's supposed to be a collective bargaining table, and we know that somebody has to be sitting on the other end. And we know that the statute doesn't really make sense for DOD to be sitting on the other end because Congress has told DOD, you can't be the employer. You have to make the state guard the employer. So you put that all together, it should

be the state guard that's sitting across the table, per what Congress said. And then, you know, furthering this YOLO court is back, let's just do it and be legends, energy. We had this absolutely terrifying intervention by King Chaos Loki himself, Neil Gorsuch. So let's play the clip. It's a long one. It's extended. And then we will explain why it's terrifying. So here it goes. So I'm just curious about the federalism implications of this case. Forget about the militia for the moment, okay? Under the spending clause today, the federal government effectively employs or provides the budgets for 30 to 40 percent of state budgets today, and many, many, many of their employees.

Are they now, in other cases, Medicare, Medicaid, the examples that Justice Barrett offered, are they now agents of the federal government effectively? Are they effectively federal agencies? No, because merely providing federal funding is not the same as providing a designation of federal authority to hire, fire, and supervise employment. Let's say Congress provides those similar kinds of provisions in those other areas. We allow the states to hire and fire the employees that we are funding, but it has to do whatever we say. You are now a federal agency.

I know you thought you were a sovereign state, but it turns out you are in fact a federal agency. So two responses to that. First of all, I think the hypothetical you just gave wouldn't convert them into federal employees if they were in fact federal employees, not just federally funded, and then the state was given the authority to hire, fire, and supervise them in their day-to-day federal roles.

I think that would look a lot like petitioners here. Okay, so in other words, there is nothing in this case that's particularly unique. Congress could replicate this same structure with respect to other spending clause programs. It could replicate it, but it is unique in that this is the only statute, 709D is the only one that either we or petitioners have been able to identify where a state employee supervises, hires and fires federal employees into a federal role. Now, I know we don't have a constitutional commandeering type claim here, but is there some concern the government has about converting state militia officers into federal agencies?

Okay, so why is this scary? It seems like Justice Gorsuch has in his sights the constitutionality of cooperative federal spending programs. Now, what are those? The federal government offers the states a big pot of money, and in exchange for taking that big pot of money, states have to use the money in particular ways, or they have to agree to do certain things if they take the money. You know, sometimes with the money, sometimes not. work. Medicaid, environmental programs, federal nursing programs, educational programs, social security, highway funding, like a lot of the welfare states, right? And under existing doctrine, those programs, cooperative spending programs, are perfectly constitutional. It is totally okay for Congress to offer states money, even a lot of money, with conditions attached to it. And apparently, King Chaos, Neil, would like to change that. Because as you heard in the preceding clip, Justice Gorsuch has some concerns with cooperative spending programs. And this isn't the first case where he raised them. And this effort, I think, to do this work through the judicial branch is not

isolated to this case, right? So maybe let's play a clip now from Justice Gorsuch voicing similar concerns in a similarly winding rant from last term's Biden versus Missouri, which involved the federal vaccination requirement for employees at federal Medicare and Medicaid facilities. And that too was a requirement that was imposed via conditional spending. If states accepted federal money, then employees at these facilities had to be vaccinated against COVID. The court upheld that requirement in Biden versus Missouri, but Gorsuch, unsurprisingly, joined a Thomas dissent in that case. So let's play that clip here. This statute, unlike the OSHA statute, actually contains an express limitation on the secretary's authority that we haven't yet discussed and that I know you're familiar with.

Among other things, it says, you know, the Secretary shall not control the tenure of employees at covered health care facilities or their compensation or their selection. And this regulation arguably, the other side will say, I'm sure we're going to hear it, so I didn't want to have a chance, is going to say this effectively controls the employment of individuals at these health care facilities in a way that Congress specifically prohibited. As I understand your response, it is we're just providing money or not providing money. And by withholding money, we're not controlling who you hire. And I might understand that in some circumstances, but in a statute where everything is about spending, it's a spending clause statute, I would have thought that Congress would have understood, and we should interpret this language

in that light, that you cannot use the money as a weapon to control these things. And in fact, of course, as you know, the Court has some anti-commandeering law that's doctrinal speak for you can't always use money and claim you're not controlling what's going on. And I wonder whether we should take particular cognizance of that here, given that these statutes sometimes constitute, we're told, 10 percent of all the funding state governments receive. This regulation affects, we're told, 10 million health care workers and will cost over a billion dollars for employers to comply with. So what's your reaction to that? Why isn't this a regulation that effectively controls the employment and tenure of healthcare workers at hospitals, an issue Congress said the agency didn't have the authority that that should be left to the states to regulate?

To amplify the point that Leah is making about these cooperative spending programs being in the crosshairs here, it's worth noting that this term, the court has already heard a major case involving federal spending programs. That case, Tlefsky, which we've previewed earlier and talked about, involves whether the terms of cooperative federal spending programs can be enforced by private plaintiffs. So again, this will be a place where we're going to see whether, at least in the opinion, if Neal is able to bring that kind of chaotic energy to that case and to other cases that raise these issues. And a side note on this case, Ohio Adjutant, the Constitution contemplates that militias will be hybrid state and federal structure. So it's been that way forever. It's almost like it's originalist. So Justice Gorsuch, maybe you should just get over it. All right. Anyway, but cooperative spending, to quote Whoopi Goldberg in Ghosts, girl, you in danger. Finally, for the sitting, the court heard Financial Oversight and Management Board for

Puerto Rico versus Centro de Periodismo Investigativo, which is a case about whether Puerto Rico residents can sue the Financial Oversight and Management Board for Puerto Rico versus Centro de Periodismo Investigativo, which is a case about whether Puerto Rico residents can sue the Financial Oversight and Management Board for Puerto Rico. And the specific legal question in the case is whether the Puerto Rico Oversight Management and Economic Stability Act, sorry, that's a mouthful, the acronym is PROMESA, so whether that statute, PROMESA, abrogates Puerto Rico's sovereign immunity to the extent that Puerto Rico has sovereign immunity that is relevant here. And that subsidiary or even, say, antecedent issue is an issue that actually surfaced repeatedly during the oral argument. Also, if there was any doubt that the justices seem tired or were flagging, you know, during this sitting, maybe

as a result of a dry January or maybe as a result of a non-dry January. You know, the transcript in this case was 64 pages long. Just to give you some perspective on that, most transcripts are, I'd say, between 80 and 100 pages, and many are over 100 pages. And I wonder, you know, what is going on? Justice Alito didn't talk at all in this case, nor did he talk at all in Glacier Northwest. You add to that, the court has yet to issue any opinions in argued cases. And this marks the longest the court has gone without releasing opinions since the court started its annual term beginning in October. And that occurred

over a century ago. It's almost like something is rotten at one first street. But on this argument in particular, you know, the Chief Justice came in strong with the notion we talked about when we previewed the case that territories are different, they have no sovereignty, Congress's power is plenary angle, Justice Sotomayor was pushing back, you know, very pointedly on this. A somewhat funny or darkly funny moment to me came when the Chief Justice suggested that the text of the 11th Amendment matters to the issue in this case. His point was that the 11th Amendment says states, not something like states, i.e. territories. But of course, the court's prior sovereign immunity cases have called arguments that are directed at the text of the 11th Amendment straw men,

because apparently the text of the 11th Amendment is straw men, because apparently the text of the 11th Amendment is a straw man in that it does not define or originate sovereign immunity. So it was just curious and curiouser. There's also some fight about the propriety of the court deciding whether Congress abrogated any immunity that Puerto Rico might have in federal court when it's not clear that the court would say that Puerto Rico has sovereign immunity in the first instance. But the courts below didn't actually address that question, that is, whether Puerto Rico has sovereign immunity in federal court and when Puerto Rico isn't a party to the case itself. In part because of those sort of peculiar features of the case, it is hard. And I think substantively it is tricky and kind of cross

pressuring, right? Like Leah, as you alluded to on our last episode, sovereign immunity is really problematic. It prevents accountability, but then treating Puerto Rico as not entitled in this instance to the same sovereign immunity that a state or the federal government would enjoy seems really problematic. But then here, it's not even the Puerto Rico government itself. It is this board seeking sovereign immunity. And on the other side of the case is this, you know, award-winning journalistic outlet trying to get access to information from this powerful body that is restructuring lots of parts of the Puerto Rico economy. So I find it genuinely hard to know sort of who to root for in this case.

And that's, I think, why, you know, you had at least some justices reaching for ways to avoid the merits, like maybe a dig, maybe a remand to address, as you know, you had at least some justices reaching for ways to avoid the merits, like maybe a dig, maybe a remand to address, as you said, Melissa, they didn't actually address this antecedent question of Puerto Rico sovereign immunity. Maybe that needs to be addressed in the first instance by a lower court. So, you know, bottom line, it's unclear what's going to happen. There seems to be discomfort with the procedural posture of the case and how the issues are presented. And so for that reason, I think they may find a way not to actually decide the substantive question in the case. The one thing we do know is that promessa is the gift that keeps on giving to a litigation. So this is like, what, the third promessa case that we've talked about?

At least. At least. I think so. Anyway. So it's now time for some court culture. We managed to record after there was some breaking news. So let's start with that. of Justice Alito's draft opinion overruling Roe have reportedly narrowed their inquiry to a quote small number of suspects. That list apparently includes at least one law clerk, but the investigation has not conclusively identified the culprit. Now, we should note a few things about this Wall Street Journal report. This information came from people familiar with the matter. Those people shared with the journal that the court brought in assistance from outside government investigators. Apparently,

like part of the investigation were interviews, but the interviews were reportedly sometimes like pretty short. And the journal characterized them as superficial, maybe because they reportedly only included asking questions like, get ready for this. Did you do it? Piercing, probing. Yeah. So apparently, you know, the journal continues, investigators relied in part on publicly available information about court employees. I guess I have my doubts about the extent to which, you know, that may or may not be probative or asking someone, quote, did you do it would be probative. But, you know, I eagerly await seeing this report if I am ever allowed to, if it's ever released to the public. But I don't know. What did you all think about this?

Well, the fact that there is an ongoing investigation actually seems like breaking news to me. I had no idea if the court was actually still doing anything. Now, what exactly they are doing and who they are using. Every few weeks, Justice Alito calls up all the clerks and says, did you do it? And then Martha Ann leaves a voicemail on their phones. It's like, I know you did it. I'll accept your apology. Say what you did. Yeah, say what you did. Yeah, we'll see. This has like, I'm sorry, this really reminds me of royal coverage where it's like sources inside Kensington Palace.

Right, exactly. Like Sam Alito says it was a law clerk. Sam Alito says they're narrowing down the list of suspects. And I love how the investigators are relying on public information. And it's public information that Sam Alito has emailed comments and statements to the Wall Street Journal. And now the Wall Street Journal is, you know, sources close to the court are reporting that this is the state of the investigation. And it's like, hmm. Let me think on this one for a second. Got a hot tip from Ram Polito.

I mean, again, I have no faith that this investigation said with air quotes is actually going to yield any fruit. I also am like deeply suspicious that a law clerk did this. I mean, law clerks are the most risk averse people in the world. Like, again, I just can't see a law clerk risking it all for this. I think it's unlikely, but not impossible. But I just mean, like, unless there's like some massive institution entity willing to make you whole. Exactly. Exactly. You know, unless there is implicit indication of support from someone, maybe the justice you are clerking for, some entity like a prospective employer or network.

Like that's also. Yeah. All right. Well, that just broke, you know, an hour into our recording. That never happens to us. No. It breaks right when we're done. Just after.

This was great. Yes. Thank you. Yes. Thank you. A few other things just to touch on. So before the holidays, the court announced that they will resume announcing opinions from the bench that practice had stopped, COVID. Unfortunately, however, the opinion announcements

will not be live streamed, even though the court's oral arguments are live streamed. That, of course, means there isn't any technical limitation on the court's ability to live stream the opinion announcements. It also means that the rights and other FOAs, that means friends of the Alitos, will be able to hear real-time opinion announcements, but we will not. And this checks out and is totally cool. It is just so bizarre. It's one of these things the court has always done. They have delayed the release of even the audio of the opinion announcements until the next fall. Even in the days where they weren't doing live streaming, they were still releasing audio at the end of the week. And it just feels

like it's one of those things they do because they can, because no one can force them to do transparency. And there's no good reason not to live stream these announcements as they're live streaming everything else. And in some ways, I think it may be quite calculated in that when the radio and television are covering the Supreme Court, it is really helpful to have audio to work with. That actually makes it easier, I think, to really do coverage of the court. And depriving the producers of those kinds of media of same-day audio they could use in informing the public about what the court is doing is actually pretty significant in terms of how it impacts the press's ability to communicate with the public about the work of the court. So I'm not sure it's at all innocuous, actually. So I had not even thought about that kind of nefarious aspect. I was thinking solely of like, what a totally stupid unforced error,

like you're in the most significant institutional crisis that you've faced in recent memory, and your first impulse is to be less transparent rather than more. That's what I thought. Well, I think it's reflexive, but I also think it could be calculated. No, I love that for them. Let's be as anti-democratic as possible. Keep it all to ourselves. Which makes me really nervous about what they're planning to do come June. Well, I guess I'm just going to have to make a donation to the Supreme Court Historical Society in order to hear it in real time. You could wait till the next batch of Christmas ornaments, like maybe next October or so. Some news that we haven't yet had a chance to cover, but we did want to spend a couple of minutes talking about, was that Cecilia, known I think

to everyone as Sissy Marshall, the widow of Justice Thurgood Marshall, who was of course the first African-American justice to sit on the Supreme Court, passed away at the end of November. She was 94 years old. And we wanted to talk a little bit about her, give you a sense of her bio, because she was really a living legend at the court for, you know, while Justice Marshall served, but also for the decades after his death. Sissy Marshall was born in Hawaii to Filipino parents.

She later moved to New York City and took night classes at Columbia University to become a stenographer. An employment office sent her in 1948 to work at the National Association for the Advancement of Colored People. She later mused that the placement was likely because of her dark skin, but that she was grateful for the intervention because had it not been for her, this employment officer, she would not have known anything about a race problem. Mrs. Marshall met her husband during her time as a secretary at the NAACP. She contributed to LDF's exhaustive preparations for Brown v. Board of Education, and after marrying Thurgood Marshall in 1955, she supported him through some of the most trying passages of his career, including his contentious 1967 Supreme Court confirmation hearing. Their interracial marriage would not be considered legal in many states until the court's ruling in Loving v. Virginia in spring of 1967, a few months before Justice Marshall joined the court. After his death in 1993, she acted as a fastidious steward of Justice Marshall's legacy,

giving frequent interviews about their life together and serving with organizations that had been important to him, including LDF. On the occasion of Mrs. Marshall's passing, one commentator called attention to the fact that after the Marshalls moved to D.C. in 1961, when President Johnson appointed Thurgood Marshall to the post of Solicitor General, he was the first African American to serve in that role, Mrs. Marshall's social circle actually became quite limited. As she put it, she was always very careful to avoid conflicts of interest, and for that reason, she had to cut out a lot of my friends because of the cases involved.

Thought that was notable. Very, very retro for a Supreme Court spouse to be concerned about the optics of her social dealings. In any event, funeral services for Mrs. Marshall were held on Tuesday, December 20th, 2022, and there were, not surprisingly, some very illustrious guests. Chief Justice Roberts, Justice Kagan, who was a former Marshall clerk, Justice Breyer, whose spouse, Joanna Hare Breyer, gave remarks about her time with Mrs. Marshall in the SCOTUS spouse group. And interestingly, one Justice Brett Kavanaugh. I found this a little surprising because I didn't realize that Justice Kavanaugh had a relationship with Mrs. Marshall. And again, me being super,

super cynical and totally out of the holiday spirit and really deep into dry January was thinking maybe this was a way for Justice Kavanaugh to maybe shift some of the attention that he had received from all of that holiday partying with Seb Gorka and Stephen Miller to something more interesting and maybe productive. Anyway, in any event, Sherrilyn Ifill, the former president and director counsel of LDF, the same position that Justice Marshall once held, also spoke at this funeral along with members of Mrs. Marshall's family. She spoke movingly of Mrs. Marshall's own work on behalf of civil rights, not simply as a support to her famous husband, but again, in her own right. So here are a few words. My favorite times to see her were when she unexpectedly arrived at the court to hear oral argument in a civil rights case. The pre-argument chatter in the courtroom would stop, and instead a murmur of recognition would reverberate through the room, from the lawyer's section to the press box, and then among the public guests.

On these occasions, it was clear that she was the legend. She represented, as she slowly entered and took her seat, the arc of our struggle and the elegance, resilience, and matter-of-fact courage of a generation of women and men who worked with dedication for the improbable legal outcomes that made possible the lives, the careers, the marriages, the unfettered travel and home ownership, the full citizenship for so many of us in this room. A great send-off for a true legend. Rest in peace, Cecilia Suyat Marshall. Rowell, audio engineering by Kyle Seglin, music by Eddie Cooper, production support from Michael Martinez, Sandy Gerard, and Ari Schwartz, with digital support from Amelia Montooth.