Strict Scrutiny - Canon Wars

Episode Date: March 7, 2022

Rachel Rothschild, legal fellow at the Institute for Policy Integrity, joins Kate and Melissa to recap oral argument in West Virginia v. Environmental Protection Agency. They also recap cases about prescription drugs, tribal casinos, outpatient dialysis, and what happens when a state wants to enforce a law that's no longer in effect. Plus, there's more on KBJ's pending confirmation, Ginni Thomas's doings, and Sam Alito's... laugh? 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 today. I'm Kate Shaw. And I'm Melissa Murray. And we are obviously not a jam-packed cast for you today. We are missing

Leah Lippman, our fearless leader, and believe me, it will show. But we do have a jam-packed show for you. So we are going to detail some breaking news, and then we will recap the last week of Oral Arguments with a very special guest. And we will finish up the episode with cert grants, opinions, and a little bit of court culture. So it's going to be a great episode. So let's jump into it with breaking news. I hope your ears were burning when Ginny Thomas, because this time there was more to say. And it wasn't just Jane Mayer's reporting on Ginny Thomas and her court adjacent and insurrectionist adjacent activities in The New Yorker. The Gray Lady, The New York Times also got in on the action. Last week, the Times Magazine ran a new piece written by Danny Hakeem and Joe Becker with fresh reporting on Ginny Thomas's activities. Now, we already knew from the Jane Mayer piece that Mrs. Thomas was involved with the Conservative Council for National Policy, now sitting on its board. We did not know, however, until this new reporting that immediately

following the 2020 election, this group of people began circulating a call to action that urged council members to, quote, pressure Republican lawmakers into challenging the election results and appointing alternate slates of electors, end quote. What? Huh? Who's it? What's it? All right. So this new reporting from Hakeem and Becker paints a far starker picture of a bench slash political trench partnership than even Mayer suggested in her reporting, which was also pretty damning of Mrs. Thomas's activities. It also seems to suggest that she was perhaps more involved in the events of January 6th than just her encouraging Facebook post where she said she loved MAGA people, but that she

was actively involved in mediating between different factions of those involved in planning the rally at the Ellipse and then later the events that transpired and culminated in this whole question about the alternate slate of electors. So yeah, that was a lot. I wasn't expecting so much after Jane Mayer dropped that bombshell, but this was like an aftershock of epic proportions. And I don't know if it's the last. It just feels like there are shoes dropping in terms of kind of, to mix metaphors, like pulling the threads in terms of her involvement. All the clothes. The two laces were pulled.

The emperor has no clothes. Well, there is. I don't know if we mentioned when we talked about the mayor piece, her brief involvement with this sort of cult group in DC as a younger adult that involved no clothes, among other things. But anyway. I had put that out of my mind, actually. Now I can't unsee it. Stop.

Sorry. Sorry, Melissa. And you're welcome. But it does, just in terms of substantive reporting about both the Thomas's activities as this kind of team, which is how the piece depicts them, and also Ginny Thomas's involvement around the January 6th events. I just, I think, I feel like there's more to come. Anyway, this, like the Mayer piece, very much worth a read. And there was one kind of gem I wanted to highlight, which is the authors of the piece, this isn't like new reporting that they are breaking, but they pull from this 2007 biography of Thomas, this little piece of reporting, which is, so Kevin Merida and Michael Fletcher wrote a biography of Clarence Thomas in 2007. And in reporting that book, they interviewed a young Katonji Brown Jackson, who obviously is a former clerk to Justice Breyer and who had, you know, had some

interactions with Thomas while at the court. And as she told the authors of the 2007 book, she remembered sitting across from Thomas at lunch and thinking, I don't understand you. You sound like my parents. You sound like people I grew up with. But the lessons he tended to draw from the experiences of the segregated South seemed to be different than those of everybody I know. I mean, Melissa, you've written about this. This underscored to me how fascinating and important it's going to be to have the two of them together on the court, internally, externally. And I just love they happen to have gotten her musing about him and what makes him tick at, you know, a very different point in her career.

One more January 6th related development, which was this last week, we saw a filing from the January 6th commission in a dispute with law professor and former Trump advisor John Eastman over Eastman's efforts to withhold documents from the committee. The filing suggests that Eastman and Trump were involved in a criminal conspiracy. Now, the claim is made in resisting a privilege claim because there is an exemption to attorney-client privilege, which is known as the crime fraud exception. So you can't withhold documents if those documents were produced pursuant to a criminal conspiracy or in furtherance of a criminal conspiracy. Boom! Lawyer! Yeah, right. I think that some of the reception of this filing was acted like it was a criminal complaint against Donald Trump.

It is very much not. But it's still a pretty significant filing and suggestion. And like the Thomas reporting, feels like, you know, there is definitely more to come on this. It almost feels like there's so much reporting about all of the machinations that went into January 6th that you can't even like wade through it all. I think people are almost anesthetized to it at this point, which is unfortunate. You know, there will be, I think, public hearings. The public, if it's sort of tuned out at the moment, will hopefully tune back in when that is playing out. Well, it is an interesting question about the sort of public education service this kind of

proceeding serves. And I have been thinking all week about as the war in the Ukraine has been waged. I've been thinking about that time in 2019 when you and I were covering the first Trump impeachment for ABC, which was all about this perfect phone call with Zelensky in Ukraine. And now it all seems like, oh, my God, this is obviously what the underpinnings of that phone call were, like the sort of threat that we're seeing now. But I don't think people could connect the dots. And I don't know that the committee bringing the impeachment and all of the people working on it were able to sort of put it together in a way that made it digestible for the public. No, I totally agree. I think that people are now aware, but maybe only recently so, of the fact that President Zelensky was the person on the other end of that phone call,

the perfect phone call. And also to the extent anyone ever thought that there wasn't that much there there in the first impeachment. The thing being withheld by President Trump was military assistance to Ukraine to resist Russian aggression, right? That was the entire quid or quo or whatever it was, was the assistance. And it wasn't an abstract need that Ukraine had for this kind of military material equipment funds. Like it was a matter of existential need.

Hindsight is 20-20 apparently. Right. Okay. So in news that is exciting and uplifting, KBJ has been on the hill. She's making rounds. It's moving fast. It helps to have a super prepared nominee who is all Hermione Granger about it and submitted her questionnaire early. It was like, boom, lawyer, done. She had it ready, ready to go. She's like, I don't just wear this jarred again for fun. It's because I'm always prepared. She also did look like she was genuinely enjoying herself. And she had this beautiful yellow blouse on, this sort of mustard color blouse. Silk kind of, yeah. Yeah. I was like, okay, girl, I love it. Love this. She looked good. And I think the White House is not giving substantive readouts of these meetings.

And I don't think anything's really leaked so far, although I presume at some point it will. So I don't know how they're going. But yeah, just the stills. She looks like she's having fun. Yeah. I mean, she's feeling it. Good. Good for her.

You love to see it. Yeah, you do. You also love to see some of the endorsements that we have seen, including from some conservative heavy hitters, right? I was surprised by these. So there was one in particular that caught my eye from one J. Michael Ludig, former judge of the Fourth Circuit. And the TLDR of this particular endorsement was, quote, Republicans in particular should vote to confirm Judge Jackson. And Judge Ludig wrote a much longer statement that went on about Judge Jackson's sterling qualifications and then went even further, appearing to endorse or at the very least not freak out about the president's decision to nominate a Black woman. And he said, quote, the president knew at the time that there were any number of highly qualified Black women on

the lower federal courts from among whom he could choose, including Judge Jackson. And Republicans should have known that the president would nominate one of those supremely qualified Black women to succeed Justice Breyer, end quote. So yeah, like it was going to be this. And regardless of where you come out, this nominee is qualified. This story is a nonstarter. Yeah, I just really seem to shoot down any of these ridiculous, like, manufactured objections to the process. And I thought, you know, Ludwig has been surprising on all kinds of fronts in the last year of American history. So put this in the ledger. Bill Burke, a notable conservative, told CNN that no serious person can question Judge Jackson's qualifications to the court. To my mind, her judicial philosophy is well within the mainstream. You know, I think that all this is very helpful and seems so obviously correct. Hopefully, we'll see more of it. Not to be outdone by the laudatory endorsements of Judge Ludig and Bill

Burke, we also had some shockingly offensive drivel, and that is the generous term for it, from the likes of none other than Fox pundit Tucker Carlson, who took to the airwaves this week and in cartoonishly villainous fashion demanded to see Judge Jackson's LSAT scores. Sir, my guy, what? What? But the thing is, I bet she could produce them because I'm telling you right now, as a black woman, I still know my LSAT score because of course someone is going to ask you for them at some point in your life in the professional world. So I'm sure she has them. I'm sure they're at the ready and I'm sure they're great. Of course. I'm sure they're great. And also, if I were her, I'd feel cross-pressured, which is like, on the one hand, it would be really

satisfying to be like, fuck you. Of course I got amazing LSAT scores. 180. Boom. Yeah, which I would – I'm sure it's in that neighborhood. And yet you can't dignify that kind of challenge with a response. It doesn't deserve her engagement or really, frankly, any of ours. We should not talk about it too much. But it was so infuriating. It's going to be like this for the next three weeks. And I feel myself – like, I already feel like my shoulders tensing up. Like, obviously, I am not going through this. Judge Jackson is. But I think I feel this for her in a way. Obviously, I am not going through this. Judge Jackson is. But I think I feel this for her in a way.

I just don't think I've felt for another nominee maybe except for Justice Sotomayor. I just feel like she's doing it for all of us and she's standing up to all of them for all of us. Let us hope that'll be the last ignorant comment like that we'll hear, but I wouldn't bet on it. Okay, so we also wanted to flag a very significant pair of cases on the shadow docket involving state redistricting. So in a case out of North Carolina, the state Supreme Court struck down a gerrymandered map, and in one out of Pennsylvania, the court itself selected the map after the political process failed to produce a map. And this is something that happens pretty routinely in redistricting cases. So in both cases, the challengers are asking the court to hold that the state courts lacked this authority

on the basis of something called the independent state legislature doctrine or notion or idea, or I sometimes like to call it the independent state legislature fiction or fantasy. The basic idea is that the federal constitution gives to state legislatures and withholds from any other state entity the power to regulate federal elections. So proponents of this theory point to two different parts of the federal constitution, Article I's elections clause, Article II's presidential electors clause, when we're talking about presidential elections. prominence in Bush v. Gore when three justices, I think it was Rehnquist, Scalia, and Thomas advanced it. But it really didn't get any pickup beyond those three, but it, in zombie-like fashion, has been revivified by this very conservative court. Right. So fast forward 20 years, and in the 2020 election, like the pre-election litigation, four justices, so Thomas, Alito, Gorsuch, and Kavanaugh, in different combinations in different cases, all signaled real interest in this doctrine. Barrett wasn't

on the court yet, so we don't know what she thinks of it. Ian Millhiser at Vox has a piece titled The Fate of American Democracy is in Amy Coney Barrett's Hands. I mean, he's not totally wrong. I mean, there is a question to my mind whether even the four who are clearly gunning for the court to adopt this doctrine would be able to do it with a straight face on the shadow docket like this. So why do you think this theory is weak? Because they argue that it is grounded in these constitutional texts and, you know, the three before and Bush v. Gore made the same argument, why do you think that this is really specious? Well, I think there's a few reasons. One, the court in a case, a 5-4 decision with a majority opinion authored by Justice Ginsburg

called Arizona Independent Redistricting Commission, held that when the Constitution uses the term legislature, it just means lawmaking body. So if a state decides to make laws by having its legislature empower executive branch agencies to do things to regulate elections, or if as a matter of state institutional design, like in most states, the state Supreme Court gets to decide if statutes comply with the state's constitution, which is what was at issue here. Or redistricting maps. Or do the maps themselves. That's the state's prerogative. It is fundamentally inconsistent with basic notions of federalism for the Supreme Court to decide how states can regulate their own elections in the face of state decisions to the contrary.

It just seems structurally baseless. The term sort of legislature, again, yanking it out of context, yeah, it seems like it means like the lawmaking body. But that is, you know, if the court adopts that, it's to impose this really narrow federal conception of what a legislature is. Like, look, Nebraska has a unicameral legislature. Like, not every state legislature has to look like and do things like the federal legislature or like the Supreme Court conceives the ideal legislature behaving. And, I mean, I don't think there's much historical support for it. I think Leah and I are actually working on a piece with, like, on one aspect of this doctrine. So maybe we'll talk about it further down the road.

But it seems like exactly the setup for a group of people who are burning for textualism. Like this is what you get when you burn for textualism. Like a very literal reading. In two ways, I think. I think both as to the constitutional text and then to the extent that they think that when state courts rely on state constitutional provisions, like broadly worded ones involving things like the right to vote and democracy and things like that, that state courts are not proceeding in a sufficiently textualist way if they're reading state statutes in light of state constitutional guarantees. Like that's a perfectly permissible

way for state courts to read state statutes. But the Supreme Court may say something like textualism as a method is constitutionally mandated for state courts as a method of interpretation. I mean, it seems ridiculous to articulate, but I think that's kind of underlying some of these cases. And, you know, it sounds like this very abstract academic debate, and until now it has been. And yet they're, you know, the proponents of that abstract academic debate. And until now, it has been. And yet they're, you know, the proponents of that theory are on the cusp of actually commanding a majority of the Supreme Court. And so the question is what Barrett, I think, will make of this theory. And if the court will have the gall to adopt it on the shadow docket like this, or will

let these state court mandatedmandated maps stand, but set one or more of these cases for plenary consideration next term. I mean, I think both of those are very possible. So let me just layer on a little more good news as we conclude the breaking news. Down in the Lone Star State, Texas, we have seen some really interesting executive actions. For example, Texas Attorney General Ken Paxton recently wrote a legal opinion that declares gender-affirming surgical procedures for children and drugs that affect puberty to denominate these child abuse, a claim that is widely understood as an attack on transgender children and their families. Happily, though, the American Civil Liberties Union and the ACLU of Texas and other LGBTQ civil rights organizations, including Lambda Legal,

have filed a lawsuit on Tuesday on behalf of the parents of a transgender girl. The child's mother, an employee of the state's Department of Family and Protective Services, had been suspended from her job because of the legal opinion issued last week by the attorney general that said that such gender-affirming treatments and procedures for transgender children would constitute child abuse. And again, the legal opinion prompted Governor Greg Abbott to instruct the commissioner of the Family Services Department, Jamie Masters, to conduct a quote-unquote prompt and thorough investigation of any reported instances of these abusive procedures in the state of Texas, which

of course led to this mother losing her job and possibly being in danger of being deprived of her custodial rights, hence the injunction that was sought and granted in the Texas courts. I just want to say, this is so unbelievably inconsistent, right? You can talk about parents' rights and tout parents' rights and parental autonomy when you're trying to ban mask mandates in schools, like, keep masks off our kids because parents' rights. And then you are absolutely shitting on parents' rights to make decision about their children's medical treatment by calling it child abuse. And this is the same kind of move that we've seen in the context of the regulation of pregnant persons, like using child abuse and child endangerment statutes to limit the conduct and activities of pregnant persons and to subject them to extreme state oversight and intervention.

So again, what to say? Way to go, I guess, and way to go to the ACLU and Lambda Legal and all of those groups for fighting back. Yeah, and I mean, one additional point, it's clearly inconsistent with sort of the mask and autonomy discourse, but it is absolutely of a piece with the sadism and brutality of SB8. And so to that extent, like the two are obviously cut from the same cloth.

Truly, truly horrifying interventions happening in Texas. Okay, so now we're going to shift to recaps of oral arguments. And we're going to begin with the big one from the sitting, which is West Virginia versus Environmental Protection Agency or West Virginia versus EPA. And we are joined for that discussion by Rachel Rothschild, who's a legal fellow at the Institute

for Policy Integrity at the NYU School of Law and an incoming assistant professor at the University of Michigan School of Law. So I'm sorry that Leah is not here with us to welcome you, Rachel, but thank you so much for making the time to join the podcast. Thank you so much for having me. So this case is nominally about the scope of EPA's authority to regulate carbon emissions from power plants under Section 111 of the Clean Air Act. But it's really about two things, I think. So one, whether the court should be hearing the case at all. Spoiler alert, it shouldn't. And two, whether an entirely invented and a textual principle known as the major questions doctrine imposes substantive

limits on EPA's authority to regulate carbon pollution from power plants. Now, Leah did an awesome deep dive on the legal issues in the case with Lisa Heinzerling and Kurti Dottla about a week ago. So we're going to largely confine ourselves to reactions to the oral argument today. So maybe I'll start by framing the argument and maybe start with something good and upbeat. And then Rachel, I want to bring you in on any reactions that you had to any of it. So here's what was good. There were three women lawyers in the case, right? The ladies were talking science, administrative law, all the hard things. We can do that, turns out.

So West Virginia Solicitor General Lindsay See argued on behalf of the state petitioners. Solicitor General Elizabeth Prelogger appeared on behalf of the federal government. And then Beth Brinkman appeared for the power companies on the same side as the federal government and in support of EPA's authority to regulate. And that last point I think is kind of important to underscore. If you remember back to one of the COVID vaccine cases, the one involving the HHS rule that the court did uphold, let me play Justice Kavanaugh's question here. First, this is an unusual administrative law situation from my experience because the people who are regulated are not here complaining about the regulation. The hospitals and health care organizations, it's a very unusual situation.

They, in fact, overwhelmingly appear to support the Secretary's CMS regulations. So I want, and the government makes something of that. What are we to make of that? So he's basically raising the question that, you know, the regulated parties don't seem to be objecting to this CMS order. And so, you know, what are we supposed to make of that? Here, you had many regulated parties on the side of EPA's authority to regulate. Now, to be fair, there were coal companies on the other side of the case, but that fact I think is significant. And yet, I'm not sure anybody really noticed or cared. Is that significant, Rachel? Is it unusual to have regulated parties in an environmental case like this on the side of the regulating entity?

I wouldn't say it's always unusual, but I do think it's notable in this case. And I also think that what was significant from my perspective is that when there have been similar types of regulations under this provision in the past, so notably the Clean Air Mercury Rule during the Bush administration, the petitioners were actually on the other side of the case and in support of EPA using this type of trading scheme or generation shifting to reduce pollutants using Section 111D. So not only do we have a situation here where we have the utilities on the side of the agency, you have parties who were previously in support of the agency using its authority in this way on the other side. And so I think that's really important as well.

Fascinating. I sort of said that I think there are two big issues that we should be talking about, the court's jurisdiction to hear the case at all, and then, right, the kind of substantive questions in the case. So just to refresh people's recollection or for folks who didn't have a chance to listen to the earlier episode, what I mean when I say the court shouldn't be hearing the case at all is that there is no rule currently in effect. No one is being regulated. No one is being injured. Kate, are you saying that this might be an advisory opinion? I truly don't know whether to think of it as a request for an advisory opinion, a case where no one has

standing, a case where mootness defeats the, I mean, it's all of them. All the things. All, because it's not a case or controversy. Why you have all of these questions is because it's not actually a case or controversy. I think this is right. I just think there is a fatal flaw at the heart of this request. And I mean- And that was raised by a number of the justices. Justice Kagan raised that, so did Justice Sotomayor. It didn't seem like that was getting a lot of pickup, though, from the other side of

the court. So just, again, to underscore what it is we are saying, there's no rule in effect. So the Clean Power Plan was the 2015 Obama rule that never went into effect. The ACE rule that the Trump administration sought to replace the rule with also is not in effect. So what the court is being asked to do here is to opine in general terms about how much authority EPA has in terms of what it is permitted to do. And that's just not how federal courts in our system typically proceed. Rachel, what did you make of this sort of dynamic? How prominent did you think these jurisdictional concerns were for the justices or sort of how did you perceive the oral argument to go in this regard? Well, I was glad to see both Kagan and

Sotomayor asking those questions, but I was a bit surprised that Breyer did not seem more receptive to those arguments. He seemed, in his questions, to think that there was a case or controversy here for them to decide on. And so I was a bit disappointed that he didn't seem persuaded by these arguments, especially as, and I think it was very interesting to see the Attorney General of West Virginia, who's playing a leading role in this case, really acknowledge that some of what he hopes to get out of the Supreme Court is something approaching an advisory opinion. So he gave a press conference recently where he said, you know, they really want to get clarity for the Biden administration, the upcoming rule that's going to address these issues

under Section 111, and that the Supreme Court needs to put in guideposts to limit EPA's authority and maybe help Congress do its job better. And when I heard that, it really struck me as a pretty textbook definition of what an advisory opinion would be. And so I had hoped it would get more play in the oral arguments. I'm so glad you flagged that because, right, sometimes politicians can be candid in a way advocates before a court can't be. So, of course, the SG of West Virginia is not saying, look, let's just kind of acknowledge what's going on here. We know the EPA is doing a new rulemaking. We would like you, Supreme Court, to say some things that will scare them into doing very

minimal regulation. And that's great for us. So can we please just all acknowledge that's what this is about? But I love the AG just stepping up to a press conference and basically making that explicit. Saying the quiet part loud. But of course, the lawyer representing West Virginia and the other states in the argument didn't make that kind of acknowledgement. So the argument I gather, because obviously West Virginia needs to say, no, of course we're not here seeking an advisory opinion, was basically that the state is asking the court to reverse a judgment of the D.C. Circuit, which invalidated the Trump administration's efforts to rescind the Clean Power Plan.

So they're saying that the D.C. Circuit judgment, though it has been stayed, like brings back to life in zombie fashion this Clean Power Plan. And if the Clean Power Plan were to be implemented after being revived, that might hurt West Virginia because it would have to comply with the targets that the Clean Power Plan sets forth. But there are just like so many steps in that chain of logic that are so speculative that it just, I cannot imagine that the court will be able to, with a straight face, write an opinion that explains why jurisdiction is proper in this case. But so maybe let's play Gorsuch seeming to suggest that he's at least either for the sake of argument or actually somewhat concerned that there is no genuine harm. the Solicitor General makes a strong argument that states are not harmed here because under the current state of affairs, there is no rule in place. And how could you be better off with the ACE rule in place? You want me to answer that question? Certainly. The Solicitor General agrees the relevant Article 3 question is whether we have injury traceable to the judgment and whether

the court can redress that. And we do. Theable to the judgment and whether the court can redress that and we do the effect of the judgment is that the clean power plan repeal is unwound and so that rule would come back to life and that certainly injures the states even though nationwide the emission levels have been largely met for the clean power plan 20 states have not met them so there's no real question that we are not injured by the judgment anything that happens afterwards a temporary stay or voluntary cessation is in mootness, and respondents have not met their heavy burden to show it's impossible for the court to grant us any relief, and it's certain that we will not be harmed in the future. Robert, though, seemed so convinced that the court had every

ability to decide this case. So he had this exchange with General Prelogger, which I thought she handled beautifully. So let's play that clip here. Before the D.C. Circuit ruled, A.C.E. was on the books, and they liked it. After they ruled, A.C.E. was off the books, and they don't like that. I don't understand why that's not fully justiciable. Well, it's certainly true that they liked the legal analysis in the ACE rule, but I think the key thing to recognize here is that they aren't actually harmed in an Article 3 sense from the absence of regulation. That's the lay of the land now. The choice is, will there be no federal regulation while the rulemaking is completed, or is ACE going to take effect?

And they can't say that they have any concrete injury or harm from not having the regulation of ACE, from not having the regulation of ACE, from not having to start working on state plans that are just going to become overtaken by events when EPA completes that rulemaking. Instead, what they're focused on is the effects of what's going to happen in the future. I guess, I mean, I gather their position would be it's just because there's no regulation doesn't mean we're happy. They would like regulation according to their particular perspective. They'd like good regulation, which they think they had with Ace.

And now they don't have it. Again, why isn't that a justiciable harm? I mean, I think that certainly from the argument, it's hard to count to more than, I think you're right, Rachel, like two or so votes for the court having no authority to decide this case at all. And it seems so obvious to me that there should be nine. Yeah, I would absolutely agree, Kate. Okay. So should we turn to the merits? So since the court is likely to just skip over all of this and actually reach the merits of the abstract authority, I don't even know. Or offer an advisory opinion. Your mileage may vary. Even when you try to encapsulate what the legal dispute, the merits of which the court will resolve is, it just highlights how ridiculous this whole endeavor is, right? It is the some version of the

authority that EPA is claiming in the rule that it hasn't issued, but that it is in the process of working up is just too much, right? That Congress didn't speak sufficiently clearly in enacting the provision of the Clean Air Act at issue. And therefore, EPA lacks the authority to regulate in the way that the states are afraid it's going to regulate. And that is some version of what the court describes as the major questions doctrine, which we've talked about now quite a lot on the season of the podcast. So there's a few questions about trying to unpack the relationship of the major questions doctrine, which is undergoing something of a transformation, I think it's pretty clear, and the constitutional non-delegation doctrine. So maybe let's play a

couple of exchanges about that relationship here. Some of the briefs talk about it as being, I don't quite know what the right word is, being informed by constitutional questions of non-delegation or delegation. Is that part of your submission or not? We have argued non-delegation under the constitutional avoidance canon. We think that if Section 111 is read appropriately with the limits Congress put in, there is not a delegation problem. But we do recognize that there's significant overlap between major questions and non-delegation. They both get at the same constitutional norm of separation of powers of what Congress would and would not be presumed to delegate to an agency. Non-delegation is asking

the slightly different question of can Congress delegate and has it given sufficient guidance? Major questions is asking the threshold question, in fact, did Congress delegate? And here, no matter what the answer is on the non-delegation question, Congress did not actually delegate. There's also an exchange between the Chief Justice and the solicitor general in which he's sort of pressing her on her basic views of the major questions doctrine. And I loved her sort of response that suggested like, yeah, you guys have said there's this interpretive principle. Like I kind of am stuck with it, but I certainly don't have to stand up here and embrace it. And I thought she threaded that needle really beautifully. Do I take from your opening comments that you agree that there is such a thing as the major questions doctrine? I certainly agree that the court has applied that interpretive principle, but not in a case that looks like this one. It's always done it with respect to actual effects.

Did we learn anything? Did you guys think we learned anything about like what this court thinks the major questions doctrine is or sort of if it is in fact something distinct for the non-delegation doctrine in these exchanges? I mean, it seemed that Kagan tried to lay out it in some clarity when she was questioning the petitioners. Mr. Rutz, I'm going to give you sort of like what I take to be the major questions doctrine as this court has stated it in prior cases, principally Brown and Williamson and UARG. This is like my understanding of these cases. And I would like you to tell me whether you think I have the right understanding or the wrong understanding, if the right one,

why you fit into it, and if the wrong one, you know, whatever. So my understanding is there's ambiguity in the statute. That's the first condition. The second is that the agency has stepped far outside of what we think of as its appropriate lane, you know, the FDA regulating tobacco, that sort of thing. Just like something that's like, what? The FDA regulates tobacco? So that's the second. And the third is, even though it is conceivable on the face of the provision being most directly looked at,

it kind of wreaks havoc on a lot of other things in the statute. So I would say it's those three things that are the common points of UARG and of Brown and Williamson. Do you agree with that? And I actually liked the way she articulated that, because I think it shows why the major questions doctrine is so problematic in this case, because this is something that is explicitly within EPA's wheelhouse, right? They have the authority to regulate greenhouse gases. That's not being challenged in the case. And it doesn't wreak havoc on the rest of the statute to have them use Section 111 to try to control greenhouse gas emissions from power plants. So I think that really shows some of the problems with employing the principle here.

So Kagan, I think, clarified both what the doctrine might be and why it's clearly not applicable here. Roberts had, I thought, just like some of the most like just vibes vibes in his questions that I have ever encountered in a Supreme Court argument. So maybe let's play this Roberts clip here and then talk about it. Why doesn't, I think there's some disagreement about how to apply it. Why wouldn't you look at it at the outset and say, as I think the court did in FDA, you know, why is the FDA deciding whether, you know, cigarettes are illegal or not? And then that is something that you look at while you're reading

the particular statute or whatever other things you look at when you're trying to interpret a statute and see if it's reasonable to suppose that. I mean, just thinking back on Alabama Realtors or the OSHA vaccine case, I don't know how you would read those as not starting with the idea that this, however you want to phrase it, this is kind of surprising that the CDC is, you know, regulating evictions and all that, and then look to see if there's something in there, I guess, that suggests, well, however surprised, you know, that's still what we think that type of regulation was appropriate. So a couple of things, right? So here he is basically he's citing Alabama Realtors, right, the CDC. The moratorium.

A fictional moratorium case, which like we just have to retire any notion that these shadow docket rulings are not precedential. Like everybody's obviously just embracing them. But, you know, he's basically saying like, let's just like think about like the CDC and OSHA and, you know, I don't know how. The FDA with cigarettes and Brown and Williamson. It's literally like, what is the vibe of the agency and is the thing it is purporting to do within

that vibe? I kind of feel like that's- In your wheelhouse. There's a lot of talk about wheelhouses. There's a lot of wheelhouses. And it's like, what the hell? This is a textualist court. What is the wheelhouse? I mean, what we're supposed to do is look at the statutes that empower these agencies and decide if the agencies are acting pursuant to statutory authority. And instead of this completely free-floating wheelhouse analysis, like what the hell is that? Although I will say I was pleasantly surprised to see Justice Barrett distinguish this case from Alabama realtors on those grounds, right? So she said that, you know, unlike the CDC trying to get involved in evictions, EPA and Greenhouse Gas seems like a much closer fit and alignment.

So while I agree that there is a lot of vibes happening here, I was at least happy that Justice Barrett tried to show that there are some important ways we should distinguish this case from those like Alabama Realtors. So Rachel, can I ask a question? Casting ahead, and there will likely be non-delegation questions for the court in upcoming terms, even if this case is not squarely about the non-delegation doctrine, how does this law of vibes portend for the prospect of the non-delegation doctrine and this idea that Congress can delegate some aspect of its legislative authority to an administrative agency so long as they provide sufficient guidelines for the agency to actually exercise that authority, the so-called intelligible principle. Well, it really concerns me in the area of environmental law, which is my area of focus in my scholarship and my practice, because you're dealing with subjects for which expertise and scientific

knowledge are so important to trying to put in place an apparatus to deal with environmental and public health harms. And so you would not expect Congress to want to really tie the hands of agencies when they're trying to put together a regulation that is going to adequately protect our planet or the population. And so to the degree that the Supreme Court is saying, no, all of these intricacies have to be worked out at the legislative stage, that's going to pose huge problems for EPA and other agencies who need to use this type of technical expertise. Wait, wait.

So are you suggesting that what might be a likely outcome of this is like Marjorie Taylor Greene is going to be doing environmental policy with her science of lasers? The concerns. It's a concern. It's a concern. I mean, we've gone well beyond the law of vibes, if that's where we are. I mean, that's the reason for an administrative state, because Congress as a body is sclerotic and unwieldy and perhaps not in possession of the kind of expertise needed to make these kinds of intricate policy level decisions, even as they are authorized to create and enact laws. dysfunction right now. Congress has not passed any amendments or new legislation on environmental

problems since 1990, except for one time when they amended the Toxic Substances Control Act in 2016. So we've gone decades without major legislation. And I think that that's why we're seeing this push from more conservative states, from more conservative politicians to try to rein in administrative agencies because they know that nothing is going to be coming down the pike to fix these problems from Congress. Yeah. And to just go back to the thing you said before, Rachel, that Congress, it seems quite deliberately is using expansive language and giving these broad grants because Congress doesn't want to have to do the thing the court seems to say Congress personally must do. And so it's just such a sort of internally inconsistent doctrine that in the guise of respect and deference to Congress,

and also forcing, you know, Congress is more democratically accountable to make these choices, but it seems to reject the choice that Congress has clearly made. Congress hasn't just like not paid attention to this, right? Congress has decided to give broad grants of authority on precisely to EPA in the Clean Air Act, in the Clean Water Act. It's almost like her colleagues know that Marjorie Taylor Greene should not be making environmental policy. It's almost like they know. Well, also, I think the thing that was interesting when I've gone back and looked at legislative history for the Clean Air Act in particular, and this section, is that it was seen by Congress as this provision that could deal with new pollution problems as they arose, because Congress recognized that they weren't going to be able to anticipate every single type of pollution problem that might threaten public health or welfare. And so this section is part

of a three-pronged scheme to try to make sure that there was nothing that would slip through the cracks, that EPA could use it to address something that was new and unforeseen. And so, yeah, I think this type of use of or interpretation of the non-delegation document is going to really hamstring Congress in trying to put in place those types of future-oriented provisions. Maybe we could end with some predictions. I mean, I have to say, as dispiriting as I found the court's disinterest in the jurisdictional piece of the argument, and as kind of gunning to curtail EPA's authority, as I think some members of the court clearly are, I just hold out hope that in the writing, whatever their kind of votes coming out of conference are, that in the writing

of this, as they realize, I mean, there were just some of these discussions as hypos are being posed and General Prelogger sort of responds and says, well, you know, there are other statutory provisions that might limit the ability to do what you're describing. So when you get to the nitty gritty, like you just, it must be very, perhaps the difficulty of writing in the abstract, which I think just underscores that there's actually a good reason why we have a prohibition on advisory opinions. Like some judge-made doctrines are kind of like, don't actually square with like logic or intuition. But like, this is actually, I think, a useful illustration of the sound prudential reasons that courts shouldn't be deciding cases in the absence of real controversies. But that in the writing, it will become clear that at the very least, they will need to write a pipe dream, or they will not sort of do the extensive damage that I think when they agreed to take the case, a lot of people feared they would do.

But is that an unduly optimistic read of where we are coming out of the argument? Melissa is nodding vigorously. What do you think, Rachel? I don't think it's unnecessarily optimistic. I am anxious a little bit given the positions that we've seen those like Justice Gorsuch and Alito and Thomas take on these issues. But I will say that this case is going to have potentially wide-ranging implications if they do really restrain EPA's authority for a lot of litigation that's coming down the pike at the state level, trying to use nuisance law, product liability law to hold companies accountable for the harms from climate change. Because the Supreme Court has found that some of the federal cases that were brought under federal nuisance law were displaced by the Clean Air Act using Section 111D as the rationale for EPA's authority

to regulate greenhouse gases. And so if it now finds that Section 111D is actually not a vehicle for the agency to deal with climate change, then it's going to potentially open up the floodgates for a lot of these common law tort suits against companies over climate change harms. And I hope that the court will also realize that they're opening up a can of worms in that sense if they decide to take a hatchet to EPA's authority under Section 111, and that that might also restrain them in addition to the problems that you point out, Kate, about not having an underlying regulation to sort of guide their writing of this opinion. That's great. That's another reason for optimism.

Melissa is still just completely unsold. And yeah, I'm super optimistic that they are going to write a very minimal opinion in which they cite to Alabama realtors as though it were binding precedent and introduce the law of vibes into the canon. I love it. Very, very minimal.

A substantive canon. A substantive it. Very, very minimal. A substantive canon. Not even one. A substantive canon. The law of vibes. Exactly. The law of vibes. Close your eyes and imagine an agency. What are the first five things that pop into your mind? What's in the wheelhouse? What's in that agency's wheelhouse? And that's just how we decide if they get to do what they want to do. Cool. That seems like a total law. That's all law. I love it here. This is great. Rachel, thank you. Thank you for taking time out of your busy work. You literally are saving the world with your scholarship. And we are so delighted to welcome you to the Academy.

You've been a great colleague here at NYU, and I know you're going to be a terrific colleague at Michigan. And we can't wait to see all of the great things that you're going to do. Thanks so much, Melissa and Kate. I'm such a big fan, and it's been great to join you to talk about this case. It was so great to have you, Rachel. Thank you. So, wow, that was great. I'm glad we have expertise to help us out. I hope the court recognizes how important expertise and particular wheelhouses are when doing this legislative thing. Nice compliment to vibes. It's a really big thing.

It's not as important. A lot of expertise. Secondary to it. This is obvious what the answer is. We choose expertise, though. Anyway, go on. All right, so we aren't going to have the benefit of real expertise as we recap these other cases, but we promise as opinions start coming in on some of these cases, we will definitely enlist actual subject matter experts,

not individuals who are wielding space lasers to talk about these cases with you. So one of the cases we want to flag from the last sitting is Isleta del Sur Pueblo versus Texas. And this is a case about whether tribal reservations should be allowed to host bingo games. I'm not kidding. The case involves a statute that governs two Native American tribes, two of the three tribes in Texas. The statute in question, which is known as the Restoration Act, was enacted in 1987 to restore a federal trust relationship for those tribes. The statute includes a provision that bars on the reservation any gambling activity that is, quote unquote, prohibited by Texas law. Now, Texas argues that the statute had been interpreted to reflect a

traditional literal understanding of the term prohibit. And this is where the bingo becomes relevant. Although Texas permits bingo in some cases, it prohibits bingo for any for-profit entity. So if you are making a profit as a casino, you cannot hold bingo games. And the tribal casinos are for-profit operations. And for that reason, Texas reads the statute to preclude them from hosting bingo games on the reservations in their casinos. The tribes, by contrast, favor a more contextual, historic

interpretation of the statute. They read the term prohibited activities in view of the Supreme Court's 1987 decision in California v. Cabazon Band of Mission Indians, which distinguish between types of gambling that a state prohibits outright, like craps, for example, which is not permitted at any casino in Texas, and those that are permitted but regulated, like bingo. On this logic, because bingo is permitted as a general matter but otherwise regulated in the context of for-profit entities, it would be okay for the tribes to have bingo at their casinos on reservations. Now, if you've listened to this podcast before, you know that this is a 6-3 conservative court with a real Jones for textualism, which means that the tribes are basically arguing uphill. And the person who's in a really tough position here is noted textual healer Neil Gorsuch. Justice Gorsuch is a son of the Mountain West, and he's probably the justice with the most experience in tribal law since that's such a big part of the Tenth Circuit's docket. And that is the court from which he hailed before being elevated to the court. Indeed, he wrote the majority opinion in McGirt, which was widely viewed as a major victory for

tribal interests and tribal sovereignty. But as we have said before, Justice Gorsuch also really burns for textualism. There was perhaps a saving grace here that allows Justice Gorsuch both to get his textualism on and to vindicate the interests of tribes. Toward the end of this oral argument, the Indian Gaming Regulatory Act entered the chat to perhaps offer a third way. This is a federal statute that permits, quote unquote, prohibited forms of gambling absent a compact between the tribe and the state. And that statute governs the third tribe in Texas, as well as other casinos throughout the country. One of the arguments advanced by the tribes here is that interpreting the Restoration Act in light of Cabazon brings all of the tribes within the ambit of the Indian Gaming Regulatory Act,

which would allow them to host bingo games. Bingo! There he is. Boom. I think that's right, that by the end of the argument, it seemed like there might be a way forward with this way, with Gorsuch, Kagan, and Sotomayor all seeming sympathetic to the tribes and this kind of synthesis of the various statutes. There were also a couple of fascinating exchanges we wanted to play regarding the so-called Indian canon, basically a rule of interpretation that says statutes passed to benefit Indian tribes should be construed to benefit Indian tribes, or it seems pretty straightforward. And yet Alito, you know, always spoiling for a fight, seemed to want to bring the Indian canon into the conversation and not just, you know, in passing,

but to question its very legitimacy. So let's play that clip here. One other question. You refer to the Indian canon. Those who favor the interpretation of statutes to mean what the words of the statute are generally understood to mean, have some question about some of these substantive canons. Now, some of them, like the Rule of Lenity, have a long history. What do you think is the basis for this Indian canon? What is the origin of this? Is it your argument that throughout history, Congress has always framed statutes in a way that are favorable to Indian tribes? My research for this case, unfortunately, has not gone that far back. I don't have the original, no one has challenged the

Indian canon's existence here, and we've not gone back to form an argument for it, Your Honor. We will talk later about the court's recent grant of sarsawari in another Indian law case, Brackeen v. Holland, where the Indian Child Welfare Act will be at issue. But I think Justice Alito here is in Hansel and Gretel-like fashion dropping a trail of breadcrumbs to show where he is going to go with this Brickene case and the Indian Child Welfare Act. Questioning these canons of Indian law that are intended, like statutes that are intended to benefit the tribe and to promote tribal sovereignty, the Indian Child Welfare Act is exactly that. So I think this was very much intended as a harbinger of things to come and purposely done. I think that's totally right. And, you know, you could sort of see the federal government was a little bit taken aback because it wasn't central to the briefing of the case.

No. And yet Alito, I think, knew exactly what he was doing. It was entirely gratuitous, but not if you think about the Burkine case, which we're going to get to. Yeah, I think that's right. Stay tuned. We'll play one more clip about this. Justice Kagan, who is sort of raising larger questions about the legitimacy of these substantive canons, this kind of list of rules of statutory interpretation that actually seem, in their very existence, many of them inconsistent with basic textualism precepts.

So let's play that clip here. I'm about to take you outside the scope of this case, so I apologize beforehand. But Justice Alito raised what to me is an interesting question that I've been thinking about a good deal, about what these substantive canons of interpretation are and when they exist and when they don't exist. They're all over the place, of course, not just the Indian canon. Next week, we're going to be thinking about this supposed major questions canon. There are other canons. I mean, if you go through Justice Scalia's book, you'll find a wealth of canons of this kind, these sort of substantive canons. Some of them help the government. Some of them hurt the government. Is there any way that the government

has of coming in and saying, like, how do we reconcile our views of all these different kinds of canons? Maybe we should just toss them all out. You know, I mean, I think kind of we should, honestly. Like, what are we doing here? But is there, do you have a view of like when these canons are the kind that you're going to talk about in your briefs and when these canons are not the kind that you're going to talk about in your briefs? You know, I think that maybe there are some substantive canon wars to come on the Supreme Court beyond just the Indian canon that I thought this was an interesting potential harbinger of. Okay, so let's leave that case there. We are not going to cover Dennis P. v. United States, which is another Indian law case regarding double jeopardy. Leah did a great deep dive on that episode with Professor Matthew Fletcher, an April

UP role. Listeners should definitely check it out if they haven't. Not just because, but partly because it involves an amazing moment when a totally deadpan Matthew Fletcher low-key compares Neil Gorsuch to Jake Gyllenhaal. You like just have to hear it. Melissa, you were sort of, no, but you were suggesting earlier on that Gorsuch was going to have real staying power on Indian law cases. And Matthew Fletcher was like, maybe it was just a fling. Maybe he'll just take your scarf and like leave town.

To be seen. Or maybe he will be truly like Jake Gyllenhaal and just sort of go back and forth and keep like leading you on and off and on and off like for a long time until you finally say, we are never, ever, ever getting back together. Right? Yeah. Yeah. I don't know. We'll see. Okay. The next case we wanted to discuss was Arizona versus San Francisco, which is a case we previewed on an earlier episode involving the Trump administration's so-called public charge rule. So that rule grows out of a statute that makes individuals inadmissible for admission or adjustment of status if they are likely to become a public charge, i.e. dependent in some form on government benefits.

So the Trump DHS issued a rule that really expanded the definition of public charge in a way that would have disqualified a lot of people from admission or status adjustment. This rule was successfully challenged in a lot of courts, district courts, and a number of appeals courts. The Trump administration then filed a cert petition literally the day before inauguration, before Biden's inauguration. The court granted that petition in February. But after reviewing its litigation stances in a number of cases, the Biden administration then asked the court to dismiss the petition, which it did, and it withdrew appeals pending in other courts, including the Ninth and the

Seventh Circuit. The withdrawal of the Seventh Circuit appeal had the effect of restoring a district court final judgment, vacating the rule, and in relying on that final judgment, DHS removed the public charge rule from its books and commenced a new rulemaking. Despite the fact that this critical judgment was from a district court in the Seventh Circuit, Arizona and some other red states then moved to intervene in the Ninth Circuit to try to defend the non-existent Trump rule. If it sounds like the EPA case, I think it is very similar in many respects. And the court nevertheless granted cert after the Ninth Circuit refused to allow intervention. And the whole argument had this real, like, why are you here feel to it,

right? The justices seem to be asking the Arizona Attorney General, which on the one hand, yes, the case makes no sense. Like the Arizona AG was in the Supreme Court asking the court to let it intervene in the Ninth Circuit when the relevant judgment was out of Illinois. And there should have been a Seventh Circuit action or an APA claim, but not this weird Ninth Circuit intervention. So let's play a clip that sort of illustrates how little sense Arizona is making in this argument. General Brnovich, let me ask you about that. So what do you propose that the federal government should have done here? Because one administration is not obliged to defend the rule adopted by the prior administration. The Biden

administration was entitled to change positions, right? So once the Biden administration changed positions, what do you think the Biden administration should have done to effectuate that? Well, they could have done once this court accepted Sarshaari, continue to defend the rule. But let's just posit they don't have to. What should they do? Then they should not have objected and they should have allowed the states to step in and defend the rule when they wouldn't. I thought your position was that they should have gone through notice and comment rulemaking to repeal the public charge rule, which is, for example, what this court said that the prior administration had to do in the DACA case. Absolutely, Justice Roberts.

Well, if that's your position, and I think that that's a very reasonable position, that the government here acted in a way that you would not typically expect or want, and that it counts as an evasion of notice and comment. But if it's an evasion of notice and comment, I mean, you bring an APA suit. It's an evasion of – it's a violation of the APA. That's the proper remedy. I mean, there's a kind of mismatch here between what you're saying went wrong and what you're saying you want. If it's an evasion of notice and comment, bring an APA suit saying it's an evasion of notice and comment, rather than like trying

to intervene in a suit that's completely dead that never applied to you in the first place. I thought it was interesting that this was raised by Justice Barrett, who came from the Seventh Circuit. A little hometown pride. That's right. I think she participated, actually. I think she might have. Yeah, in this case, when she was on the Seventh. And so maybe there would have been a recusal issue if this was the Seventh Circuit case in front of the court, but of course it's not, even though it really should be. So it just gives you kind of a sense of how lost Brnovich seemed in the whole argument. Maybe they will just dig the case. One thing I did want to flag that was really interesting was that Brian Fletcher for the federal government took the very strong position that federal district courts do not have the power to issue nationwide injunctions.

It's the strongest statement of that position, I recall the federal government taking. That's an important intervention in these really heated debates about the permissibility of these nationwide injunctions. And one other thing to flag about the argument, which was it was the debut Supreme Court argument of Helen Hong, who's a deputy solicitor general in California. She was arguing on the same side of the federal government, and she was spectacular. Way to go, Helen Hong, your maiden voyage. Fantastic. You crushed it. She really did. So another case that we briefly want to highlight is Ruan versus United States. And we have previously highlighted this case, which considers whether good faith is

a defense for physicians who are criminally prosecuted for the unlawful distribution of controlled substances. The Controlled Substances Act makes it unlawful, except as authorized to, quote, knowingly or intentionally distribute controlled substances. But under a statutory exception, registered doctors can prescribe controlled substances in accordance with rules promulgated by the attorney general. And the rule at issue in this case allows doctors to dispense a controlled substance that is issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The government argues that

in determining whether good faith is a defense, an objective standard has to be used, whether the physician made a, quote, honest effort to comply with professional norms, end quote. The defendant doctors argue that the standard must be subjective. Did the doctor subjectively believe she was not prescribing for a legitimate medical purpose? And they argue that this subjective standard is necessary in order to differentiate a criminal offense from a mere regulatory violation. And the oral arguments were, I have to say, a grammarian's dream come true. And you know where you speak. I do.

As a devoted grammarian. Lots of discussion of adverbs and modifiers. And the justices seem to be inspired by the high school yearbooks that Leah dug out. And Justices Breyer and Alito especially seem to be reminiscing about their school days as they parse the meaning of these particular provisions. Here's Justice Alito. We're interpreting a statute. So we should start by looking at what the statute says. And it says, except as authorized by this subchapter, it shall be unlawful for any person

knowingly or intentionally to do a variety of things. As a matter of language, do the adverbs knowingly or intentionally modify the introductory clause except as authorized by this subchapter? The answer is yes, Justice Alito, and I'd be happy to explain why I think so. Well, I think my old English teacher would say no. You've gotten that answer wrong. There's no way they can modify except as authorized by this subchapter. They modify what comes later. But you explain to me why they modify it as a matter of language, not as a matter of constitutional avoidance or something like that.

And not to be outdone, Justice Breyer invoked his own grade school English teacher, one Ms. Chichester. I'm sorry, Justice Breyer. I'm sorry, Mr. Rahm. Justice Breyer had a question. I said I had a different English teacher. I had a different English teacher, Ms. Chichester, who told us an adverb could modify a verb, an adjective, or another adverb. And as long as that's so, the teacher says to the class, Class, I don't want you to refer to Basingstoke's book about Julius Caesar unless we're talking about the Gallic Wars or something. But purposely. I don't want you purposely to do that.

I don't want you purposely or knowingly to talk about Basingstoke's book, about the Gallic Wars, unless we're talking about the Gallic Wars. I guess that knowingly applies, doesn't it, to the unless clause? I should think so. Yeah. And if you put the unless clause first, it applies, too, doesn't it? No doubt. All right. I'm really not asking you this question. I'm asking Mr. Fagan. And let me just say, lest I leave the point unsaid.

You would have been good in Ms. Chichester's class. SGB, you're perfect. Never change. I love this. Who is the audience for this going to be when he's actually off the bench? Is Ms. Chichester alive? I don't know. He references grandmother in the bingo argument as well. He's feeling nostalgic as this time draws to a close. I kind of like this. He's got authority. He's been there for a long time. He can do this. And I have to say the best part about all of this was that the time had elapsed for this particular exchange between the advocate and the court. But he wanted to talk about Mrs. Chichester.

And the chief justice was like, I guess. He's feeling indulgent these days. He is. I thought it was like it was a lovely moment for all involved. The case also prompted a lot of discussion about the distinction between a regulatory offense on the one hand and a criminal act on the other. And that, again, sort of went to this sort of broader question about the subjective and the objective sort of states of mind and the way that you considered these standards for determining whether the physician

had a good faith defense. What the justices did not spend a lot of time on was a main issue that was raised in a lot of the briefs. And we had highlighted this previously on an episode where we discussed an amicus brief filed by Deborah Hellman at the University of Virginia. And there she articulated concerns about the prospect of a particular standard perhaps chilling the practice of medicine, and in particular, the practice of the growing and quite important field of pain management medicine, which is a legitimate practice for physicians to engage in. But Deputy Solicitor General Eric Fagan emphatically underscored throughout the oral argument that the statutory scheme in play here is meant to target doctors who are essentially dealing drugs and not doctors who are making

medical calls, even calls that might be disputed going forward. Again, because this is strict scrutiny and we are trying to occupy the mindset of the court and also, I guess, some of the arguments we heard today. I am in the wheelhouse. My new wheelhouse is medical practice and the law. So I want to highlight another case, Marietta Memorial Hospital Employee Health Benefit Plan versus DaVita. DaVita, of course, is one of the nation's largest provider of dialysis services. So in Marietta Memorial, the court considers the financial ramifications of applying a vaguely written statute to an insurer's craftily designed arrangement for lowering the reimbursements it pays for outpatient dialysis. The statutory framework puts the primary responsibility to pay for dialysis treatment on secondary insurers for the first 30 months after the diagnosis of end-stage renal disease, with primary responsibility

then shifting at that point to Medicare. That arrangement allows the secondary insurers to basically have an incentive to lowball reimbursement for outpatient dialysis. And if they lowball and offer these low payments for that treatment, the patients will naturally respond by canceling their private insurance and moving on to the Medicare system where the reimbursements are more advantageous. To prevent insurers from engaging in this sort of manipulation and driving people to enroll in Medicare for the better reimbursements, Congress adopted a series of rules that prohibits secondary insurers from discriminating against

patients with end-stage renal disease. And here, the insurer, Marietta, adopted low reimbursement rates for outpatient dialysis. It has no in-network provider, it requires patients to pay up front for dialysis, and it reimburses based on a percentage of the Medicare rate as opposed to the reasonable and customary costs of care, the standard that it uses for all other treatments. Because the plan applies to everybody that receives outpatient dialysis, however, regardless of whether they've been diagnosed with end-stage renal disease, Marietta argues that they are not in violation

of the statute because they have not actually offered different care to those with end-stage renal disease. So this is like sort of, again, stroke a hairless cat genius move. Like basically offer the low reimbursements to anyone receiving dialysis, recognizing that those receiving outpatient dialysis are in large part going to be this group of people with end-stage renal disease. And that point was not lost on Justice Kagan, who emphasized this overlap between the patients

with end-stage renal disease and those using outpatient dialysis. Here's a clip. Can I ask you, I mean, maybe just state the question at a completely abstract level first. If there's a law that says you can't differentiate between group X and group Y, right? And you don't differentiate quite between group X and group Y. You just find a perfect proxy, a perfect proxy that ends up distinguishing between group X and group Y. So you change the words, but 100% of the people with this proxy characteristic are group X, and 100% of the people with this proxy characteristic are group Y. Are you in violation of the differentiation provision or not? So this proxy theory that she advances really dominated and shaped the argument, although she also had a second star turn when she began questioning the

Assistant Solicitor General, Matthew Guarneri, who appeared on behalf of the government in support of the insurer's very literal reading of the statute, a reading that would save the insurer money while burdening Medicare and the government. And so if you're confused as to why the government, which administers Medicare, was in favor of the insurer's position, which burdens Medicare, don't worry. You're not alone. Justice Kagan was confused, too. Here's a clip of their exchange. Yeah, I think what most confuses me about this case, Mr. Gornieri, is why you're on this side of it. I mean, it just, you know, I hate to say the obvious, but usually the government

is concerned about the state of government finances. And aren't you clearly going to end up paying more if the petitioner wins than if the respondent wins? That may well be the case, Justice Kagan. Basically, Guarnieri's argument is that he is burning for textualism. This is a literal reading of the statute, and there we are. Now, not to overstate things, because I think Justices Alito and Thomas seemed very much on board with Marietta's reading of the statute, but I really have to say, I think Justice Kagan was very persuasive here with that proxy argument, and if DeVito wins this particular go-around

with Marietta, I think it is likely because of her advancing this proxy argument. Her advocacy from the bench is unparalleled. It really is. So the next case I'm going to try to describe briefly, Egbert v. Boole, involves the scope of the right to sue federal officers for damages under Bivens. So this case arises out of events surrounding an inn and suspicious characters near the U.S.-Canada border. So respondent Robert Boole is a U.S. citizen who owns and runs the Smuggler's Inn, which is a bed and breakfast on the Canadian border in Washington. Seems to have been a pretty colorful character. In addition to the inn, his license plate says smuggler.

He worked as a confidential informant for the Customs and Border Patrol. He's not a black man. I'm guessing the same thing. Yeah, he's inviting a lot of interest on the part of law enforcement, although then he himself is also a confidential informant. So he contains multitudes, I think, is the point. So Eric Egbert, a Border Patrol agent, attempted to speak with a guest at the BNB. Boole asked Egbert to leave his property. Egbert shoved Boole to the ground. Boole complained to Egbert's superiors. Egbert allegedly contacted the IRS, resulted in a tax audit, investigations of Boole's activities.

So Boole filed suit against Egbert for First Amendment and Fourth Amendment violations. And so the court here is deciding whether to recognize a Bivens cause of action, right? So that is a cause of action to sue a federal official for violating constitutional rights in this admittedly fairly idiosyncratic context. That's very generous, Kate. So the court – now, we should say the court in recent years, whatever the context, has been very reluctant to extend Bivens and in some ways has arguably cut back on Bivens. This seems to be a spectacularly unsympathetic set of facts. I don't – I really don't. They're complicated facts.

But, you know, so... Who among us hasn't beat up a customs officer who in turn calls the IRS on you and instigates an audit? Who among us? It's about as universal an experience as it gets. The Justice did seem to be enjoying the facts of the case just as we were.

So Justice Alito at one point kind of chuckled at himself like he laughed in a non-diabolical fashion. And it was startling enough that I actually want to play the clip here. Well, so here he's following up on a call from your client about somebody. Why did your client call the agent about this individual? Actually, Agent Egbert had stopped Mr. Boulay. He performed a vehicle stop on the road earlier that morning. And during the course of that stop, Mr. Boulay informed Agent Egbert that there would be somebody arriving in that evening. And why did he inform him of that?

That is not clear from the record. That's the type of factual development that we would hope to have the opportunity to develop at trial? I mean, if he knew that one of us was going to check into the smugglers' inn and he happened to be stopped by a Border Patrol agent, well, he would say, by the way, well, let's— Suspicious characters. Yeah. Any ordinary person, if the hat was checking into the smugglers in,

he would have told the agent. That's how I imagine him when he's at home putting on a mask to, like, you know, make his skin glow. Not like a superhero or villain mask. You mean like a, you know, like a avocado. No, and also not a COVID mask, but like an actual, like a sheet mask. Like he's just like, hmm. Samuel Self-Care Alito. It was. That's kind of – that was the persona that I was hearing. So let me just say we were brief and kind of dire in our short preview, but actually the argument went the availability of the Bivens remedy, came out swinging super hard for Bivens. The court had declined to take up the question of whether Bivens should be overruled.

And so she nominally accepted it but felt like she was coming pretty close to arguing that it should be jettisoned. But I didn't actually get the sense the justices had the appetite for that. And I should say Felicia Ellsworth was also fantastic also on her Supreme Court argument, and just really knocked it out of the park. So, look, we may see some further cutting back or tightening of Bivens, but I don't expect the opinion to be the bloodbath that we initially feared. And two ladies arguing before the court. Yeah, and a male advocate for the federal government, so it wasn't just ladies, but yeah. So let's quickly go through some hot grants that came down. It was actually a very big week at the court between these big oral arguments. We got a couple of opinions. We also got a lot of grants. One very important cert grant

to flag, the court granted certiorari in a case called Brackeen v. Holland, which will provide Justice Alito, I think, with yet another opportunity to invalidate the Indian Child Welfare Act. The Indian Child Welfare Act is a 1978 statute which, among other things, gives tribal courts jurisdictions over custody and child welfare and adoption matters involving Native children domiciled or residing on reservations. It also provides concurrent jurisdiction to tribal courts over child welfare adoption and custodial matters involving Native children who are not residing on reservations. And when it was enacted in 1978, the ICWA was widely heralded as a strong statement of tribal sovereignty and as a rebuke

to the Indian boarding school movement, which was a shameful period from the late 19th and early 20th century in which Native children were removed from their homes and families on the reservation and placed in state or charity-run boarding schools where they would be assimilated into Anglo norms and culture. Faced with similar removals under the state-level child welfare system in the 1960s and 1970s, tribes lobbied for the ICWA on the ground that these removals were stripping them of future generations and the ability to actually maintain their sovereignty

and indeed just the very nature of the tribe going forward into the future. And we should say that there has been a sustained attack on ICWA in the courts in recent years. Last year, that campaign culminated in a 325-page decision by the en banc Fifth Circuit, on some parts of which the court was evenly divided and other parts of which there were different majorities for different propositions, but where

the constitutionality of the ICWA statute was squarely at issue. The court granted cert on the question both of whether ICWA and its preference for placements of Native children with members of their tribes contains an impermissible race-based classification, and also whether the law intrudes on the province of the states. With regard to the question of whether the ICWA contains an impermissible race-based classification, there is another 1970-era case from the court, Menkari v. Morton, that makes clear that when there are preferences for tribal identity or tribal sovereignty, those are not race-based considerations, but rather political considerations. So when we

think about tribal membership, that is a political characteristic as opposed to a race-based characteristic. And so it's outside of the traditional equal protection analysis for race-based classifications. This new grant basically challenges that framework. Calls that into question. And I mean, I think people have been gunning for Morton, which has provided protection to a lot of Indian preferences that exist in law, not just in ICWA. And also, you know, so all those are called into question, I think, if Morton is, you know, potentially vulnerable. And a lot of basic questions of tribal sovereignty are as well. So I think the implications of the case, ICWA is a hugely important statute on its own. The broader

ramifications could be enormous. Season two of Rebecca Nagel's This Land podcast is all about both the attack on ICWA and the Burkine case in particular. Seriously, listen to it all. It's phenomenal. And we are going to talk to Rebecca about this case on a future episode. So stay tuned for that. Another great Crooked podcast that you should listen to. I'm really excited about this Crooked partnership because we get to hang out with people like Rebecca and talk about these cases. I'm not happy the court took Breckin, but that is the one silver lining. It's a small comfort, but I totally agree. Yes, small comfort. All right, quickly, the court issued a couple of important opinions. One that we were really watching, this was, of course, an EMW versus Cameron. And I have to say, we called this

one. Also, Justice Breyer also let the cat out of the bag with this one at oral argument for Arizona versus city and county of San Francisco. So again, never change, SGV, you're perfect. Let's play that clip here. on bank or maybe ask the Supreme Court. Pretty similar to what we just allowed in that case of the attorney general, you know, it was a different party. What was it, Kentucky? And pretty similar. So as we predicted, and as Justice Breyer confirmed, the court ruled 8 to 1 that Kentucky's Attorney General Daniel Cameron should have been allowed to intervene to defend a state law restricting abortion after the state's health secretary declined to do so, even when the U.S. Court of Appeals for the Sixth Circuit had already struck down the law. The majority opinion,

which was written by Justice Alito, emphasized the importance of allowing states to defend their own laws in federal court, especially in circumstances like these where both the health secretary and the attorney general were authorized to defend the constitutionality of the law. But Justice Sotomayor, the lone dissenter here, warned that the court's decision in this case could have drastic repercussions anytime there was a change in administrations during the course of litigation. As she explained, the decision will quote, open the floodgates for government officials to evade the consequences of litigation decisions made by their predecessors of different political parties, undermining finality and upsetting the settled expectations of courts, litigants and the public alike, end quote. That's kind of how we saw it.

But again, eight to one. The next case that the court issued this week was United States versus Abu Zubaydah. Eight to one. to use that information in Polish litigation. The U.S. government invoked the state secret's privilege to block Zubaita's access. The Ninth Circuit in part sided with Zubaita, but the court, in an incredibly fractured opinion, reversed the Ninth Circuit and sided with the federal government. So you had Breyer writing for six on the judgment of reversal, but only a plurality for a bunch of parts of the opinion, sort of used the approach set forth in the 1953 case Reynolds versus United States to govern the state secret assertion. Thomas, joined by Alito, concurred in part, concurred in the judgment. Kavanaugh, joined by Barrett, concurred in part, concurred in the judgment.

Kagan concurred in part and concurred in the judgment. And the most interesting writing in the opinion, I think, no question, was the Gorsuch dissent, which was joined by Sotomayor, in which he wrote, there comes a point where we should not be ignorant as judges of what we know to be true as citizens. He continued, ending this suit may shield the government from some further modest measure of embarrassment, but respectfully, we should not pretend it will safeguard any secret. And this was just so interesting, right? It just made me wonder about the category of things we, quote, know to be true as citizens and how a judge is to decide when to credit the things known as

a citizen, right? Does it include the fact that the Trump administration's efforts to add a citizenship question to the 2020 census were obviously driven by partisan motive? What about the fact that Trump's travel ban executive order was obviously driven by anti-Muslim animus or the desire to fulfill a campaign promise? Like Gorsuch didn't use what he knew as a citizen in those cases. Sotomayor, I hasten to add, definitely did. And I'm not sure how he decides when it is and when it is not permissible. One other state secret case, FBI versus Fazaga, came down like just a little bit before we sat down to record the episode. So I haven't had a chance to look at it yet. But it looks like this is a 9-0 case siding with the government's state secrets assertion. Although Ahilan Arulanantham, who argued the case, tweeted after the opinion was released that although this is a 9-0 reversal, it's actually

a very narrow ruling that leaves several paths to victory open to his clients. And so that I think is significant. Okay. Really briefly, there was some court culture that we should bring up, and most of it happened at the State of the Union address where we saw justices in the wild. So this was really important, because it was for our guy, Stephen G. Breyer, the last State of the Union that he will attend as a sitting justice. But it was also the first State of the Union that Amy Coney Barrett got to attend as a sitting justice. And we saw some really interesting things. So there were some notable absences from the court. Predictably, Justice Sotomayor, who's been very COVID observant, was not there. But neither were Justices Gorsuch, Thomas, and Alito. He was probably at home tending to his skin. Yeah, but he also, I'm sure he wasn't there because his poker face is terrible and he can't sit through a Democratic president's State of the Union without, you know, jumping to his skin. Yeah, but he also, I'm sure he wasn't there because his poker face is terrible, and he can't sit through a Democratic president's State of the Union without,

you know, jumping to his feet in response or at least shaking his head. So I think, you know, this is like a know thyself moment, and I think that's probably why he sat it out. Well, I mean, yes, his face has no chill for this. So it's probably, this is a good one to stay home and do your masking. But we saw some other really interesting things. So Kate, with your eagle eye, you spied something interesting. It was. So there's this weird exchange between Kirsten Gillibrand and the Chief Justice. And everyone was like, what are they talking about? And he sort of shook his head at one point and kind of created some space between them. And we were all really

puzzled by this. And she subsequently told press that she was essentially lobbying him to abide by precedent, I think is what she said. So she was not lobbying him on any particular case, although she was, of course, talking about Roe. And there was part of me that was like, I don't know if that's a very good strategy. I don't think you can do that. I don't want to be too precious about it. He's there. He can be spoken to. If she wants to approach him and say, abide by precedent, it's not like she's saying, let me slip you $1,000 so my side wins. She's not doing anything improper in that regard. She's not even talking about a case. So on the one hand, she's saying, like, do your job, which is not a controversial request.

On the other hand, they're not used to being lobbied, even in those sort of broad ways, one-on-one. And so it was like, she definitely broke a norm there. And I'm still puzzling through how I feel about it. What do you think? I mean, he seemed incredibly uncomfortable. Like, I mean, I did notice that he physically was like, girl, back up off me. I mean, he's probably not used to it. I mean, that's also the thing.

We saw them in the wild. I don't know that they're out in the wild with other branches in that way. I mean, they are pretty monastic. And to actually have someone from a political branch, like, get in your face. I mean, I'm not, this is not a slight to Senator Gillibrand. I mean, just like, you know, hey, dude, do your job. He's probably like, no, like, we need some distance. As I think about it, it was a protocol breach. But it's also the first time this newly hyper-charged conservative supermajority is out there interacting with people. And they're breaking norms all the time. So in some ways, why not?

At least it sends a message that what they are doing is not going unnoticed. And it's observed. Yes. I see you. As I think about it, maybe she was right to do it. Anyway. Well, can you imagine Senator Gillibrand just looking at him and putting two fingers up like Robert De Niro and meet the Fockers? Like I see you.

I see you. I see you, Robert. She was basically doing that and he didn't like it, but maybe that's okay. Obviously, the main event at the State of the Union address is not justices in the wild, although we were pretty jazzed about that. The main event is obviously the president's speech. And because of the situation that we are in right now, much of the president's speech was given over to discussion of the situation in Ukraine. But there was a little bit about the court. Biden talked about his nominee, Judge Jackson, very briefly, heralded her credentials, heralded the historic nature

of her nomination, and then sort of went on to sort of signal some of the important issues coming out of the court for about exactly a minute and 30 seconds. So he mentioned reproductive rights, not explicitly, not obviously by saying the word abortion, but talked about stare decisis a little bit and then very breezily moved on to something else. So if you were hoping for a more fulsome declaration of support for women's rights, you would have been very disappointed. If you went to refresh your cup of tea during the State of the Union, you basically missed it. It was pretty fast. Then there was some great action at the end because our boy, Joe Biden, went up to our boy,

SGB, Stephen G. Breyer. And of course, there was a hot mic for these two. Of course. Of course. Of course. And they actually had a very, very long and seemingly substantive discussion. So Kate, what did they talk about? It was sweet. It was a, I respect you a lot, man, I think is what like- Pals. They called each other pals. Pals. Not man, you're right, pal. And Biden said something like, I did good, right, or something to that effect, referencing KBJ. Breyer, in response, nodded his head vigorously, seeming to express his endorsement for the nomination of his former clerk, KBJ. So it was a sweet moment.

They also mentioned their time on the Senate Judiciary Committee when Justice Breyer had been the counsel for Ted Kennedy. So there was a little bit like, you know, we used to spend all our time on this man, pal. I mean, it was very, it was, it was cute, like a little bro-y, a little like, I like them being pals. They're both old enough that I was not that happy with how close together they were as they were talking and how close together they were as they were talking and how close they were to everyone else. It was an enormous unmasked gathering of many elderly individuals. And on the one hand, I'm delighted that we are coming out of this.

COVID is over, Kate. COVID is over. Okay. I hope that's true. COVID is over until it starts again. No, this is like these little interwave periods are so precious. We really must make the most of them. Enjoy these times between variants. Enjoy these interludes. I think that's all we have time for today, Kate. We've really covered a lot, as it were. The law of vibes, wheelhouses of many kinds.

And I think it's basically time to sort of end this. So with that, we'll leave you, dear listeners, to let you know that Strict Scrutiny is a crooked media production that is hosted and executive produced by Leah Lippman, Melissa Murray, and Kate Shaw. And it is produced and edited substantially by one Melody Rowell. Audio engineering is by Kyle Seglin with music by Eddie Cooper and production support from Michael Martinez, Sandy Gerard, and Ari Schwartz. Digital support is from Amelia Montooth.

Thanks so much for listening. We'll see you next time.