Strict Scrutiny - Cassandra Moment

Episode Date: January 27, 2020

While Kate and Jaime recover from the live show, Leah and Melissa bring some exciting impeachment updates … including the Chief Justice caught on camera in Strict Scrutiny SWAG (?!?). They also recap two of the January arguments, Espinoza v. Montana Department of Revenue and Shular v. United States, and offer some “I told you so” s about the Court’s recent cert grants. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, a podcast so fierce it's fatal in fact. And for those of you who have not yet listened to our last episode, you should know that we took this on the road. We did a road trip, people, and it was epic.

All four of us converged upon the University of Michigan. Go blue! Go blue. Live taping before an audience of terrific UM law students. So we just wanted to say again, thank you so much to the University of Michigan and to the ACS student chapter for your terrific hospitality. That was such a fun event and we were so excited to test the live waters with you. We should note though that our road trip was so epic that some of us are still recovering.

Some people are not used to the all-weekend-long party like we are. So Kate and Jamie aren't with us today, but Melissa, that's me, and Leah. Hello. We're going to be here breaking it down for you. But don't worry. Even without Kate and Jamie, we have a jam-packed show filled with lots of SCOTUS news and insights. So once again, our traditional rundown, we will start with breaking news, turn to some of the cases from this week's oral arguments, and then a little bit of court culture.

Okay, so let's start with the breaking news. As we noted last time, the impeachment proceedings are underway and the Chief Justice is doing double duty. We had the beginning of those impeachment proceedings. And on the first day of argument, the proceedings went really long. And late in the evening, maybe early in the morning, the chief justice decided to give the Senate a little bit of a lecture. He announced that he thinks it is appropriate for me to admonish both the House managers and the President's Council in equal terms to remember that they are addressing the world's greatest deliberative body. I watched a lot of this. So I was I watched a lot of it. And I guess I was just sort of, what was the, you know, there are good people on all sides issue? Like, who was doing the bad stuff? Like, I actually, was it the House managers? Was it the president's lawyer?

I mean, there was a lot of sort of loud talking. I didn't know that it tipped over into requiring an admonition from the chief justice, but what do I know? Yeah. So he used as an example that during the 1905 Swain trial, a senator objected when one of the managers used the word petty fog and the chief justice is like, we're not aspiring to that highest standard, but you guys try to keep it civil. I think we should aspire to that standard, petty foggery. No senator is going to use that word today. But I just thought this bit was just pretty peak Chief Justice Roberts, you know, using this kind of both sides language to do this very mild criticism of both sides. It was, you know, he did that on the first day. Lord knows what other treasures we have in store for us. Well, I did notice that the day after the

second day of argument, which was Wednesday, the chaplain of the Senate came forth and he was a little bit more pointed than the chief was. So when he issued the prayer to the chamber, he was basically like, God is watching y'all get it together. This is the Senate. I mean, it was kind of cool. And the chief like was head down and was taking a moment of reflection. But I wondered if they conferred in advance. And the chief was just like, yeah, give it to them. Yeah. So one other thing that has emerged from this entire proceeding is that there are images

of the chief justice presiding over the trial now circulating on the internet. And people have made something of a meme of it because there's one particular photo in which he just has this expression of consternation on his face. And so people were kind of captioning it with different lines. And I wonder if that experience has just made the possibility of cameras in the courtroom even less of a possibility. Oh, I mean, I think all of this, I mean, the fact that he thinks that the senators and the house managers and the president's lawyers, like someone is acting badly, maybe everyone is acting badly. That's like, and I think they're, he thinks they're likely acting badly because of the

cameras. And then he has, you know, I think they probably conferred, he and the chaplain probably conferred a bit. And the chaplain lays into the chamber. And then all of this stuff is happening. Everyone, well, Dahlia Lithwick was the most hilarious, where she was like, I've never seen this man's legs. And I'm just like reveling in his legs. Like I watch him walk into the chamber every day. It's amazing. So I bet he does not like being sort of an object of public scrutiny like this. No, I can't imagine he does.

Well, I did like that an enterprising strict scrutiny super fan did do a little riff on the meme by giving the chief justice a strict scrutiny trucker hat and button. And also a mug. Also, he gave him a mug. I think Stevie was also in the background. Stevie was photoshopped in the background

wearing her necessary to enforce the Voting Rights Act bandana. Naturally. We're just saying to the chief, your birthday is coming up. If you need a little birthday care package, we can send a trucker hat your way. Just give us a shout out. If you want to cover up your bald spot, right, while you're on camera, we are happy to help. Does he have a bald spot, right, while you're on camera. We are happy to help. Does he have a bald spot? Yes.

I never noticed those things. Now you won't forget. Well, I will now go back and look in any event. All right. So while the impeachment is over, the Senate is obviously doing double duty. They are only convening for impeachment in the afternoons. And the court is doing double duty because they have arguments in the morning and then the chief justice is ferreted across the street so that he can preside over the impeachment trial. But the Senate

Judiciary Committee took a really interesting step. So on January 15th, Senator Kamala Harris tweeted that the committee should stop its deliberations on judicial nominations until the impeachment trial was concluded. And she later reiterated those comments in a meeting of the committee. And her concerns seem to focus around two different things. One, they already have enough to focus on during the impeachment, and they are basically there in the chamber under pain of silence or pain of imprisonment. They must be silent. They can't drink anything but milk or water. They've got enough to do without worrying about these nominations. But I think her bigger point was that there's something fundamentally problematic

about considering the nominees of a president who at the same time is undergoing a proceeding that may or may not lead to the removal of that president. And that actually seemed to sway a number of Republicans on the committee. And Chairman Lindsey Graham went along with the proposal saying that we will see you after impeachment. And he adjourned a committee meeting for several nominees, including Andrew Brasher, who is a nominee to the 11th Circuit. And he's just very recently appointed to the district court in Georgia, I think, and now is going up to the 11th Circuit or is being considered for an 11th Circuit spot. Yeah, I thought Lindsey Graham's comment was interesting.

You know, we'll see you after impeachment, just because he seemed rather confident, right, about how things were going to turn out. And on the other end of this entire spectacle, which, you know, maybe some of us are as well, but just kind of reflected their general attitude toward the entire proceeding, like, let's just get this thing done with. We all know how it's going to end. Well, I mean, it does seem like a foregone conclusion, although I will say, having watched quite a lot of it, I think the House managers are actually very good. And I was very impressed with Chairman Schiff.

I mean, you can tell he's a former prosecutor. He's very comfortable. So much of his exposition before the chamber is extemporaneous, like he's speaking without notes. And it's probably not surprising. He ran the Intelligence Committee and knows the ins and outs of this case. But, I mean, he's really performing well. And I think there are some really great moments. Hakeem Jeffries, an NYU law alum, dropping some Biggie Smalls references in there. That was pretty cool. And Jason Crowe, I thought, was very impressive, as was Val Demings, who I called as a House impeachment manager many episodes ago. So who's going to pay me my money? I don't know. The Supreme Court isn't slowing down, even though the chief justice now has a side gig,

in addition to his usual role at the court. A side hustle. Exactly. Make that money. So as we noted at the very end of the live show, the court had three new cert grants, and those cases include some pretty big ones. So one that I really found interesting is this Little Sisters of the Poor, Saints Peter and Paul Home v Pennsylvania and Trump versus Pennsylvania. These cases will take up the Affordable Care Act's birth control mandate, which generally requires employers to provide their female employees with health insurance that includes certain forms of contraception. This is again before the court, again against some more.

So in 2013, on the heels of Hobby Lobby, the federal government exempted churches and other religious institutions from compliance with the contraceptive mandate and created an opt-out accommodation. Both the mandate and that accommodation process were to try and work out a solution. I think that was when they were all desperately trying to get along with just an eight-member court. But things have changed since then. the Trump administration issued new rules that really expanded the opportunities for individuals to claim exemptions from the mandate and allowed private employers broad license to just not provide this coverage that the ACA has made available. It was challenged. The Third Circuit upheld a district court ruling that prevented the government from enforcing the rules

nationwide. And now they are seeking review of that ruling. The Little Sisters of the Poor, which is a Catholic religious group that works with the elderly. Lots to see there. I mean, that is a really important case. Getting my handmade robe ready. Right, exactly. You know, I mean, the grant in this case is kind of indicative of two things, and one is a little bit of an I told you so. But the one that isn't a bit of a bit of an I told you so is But the one that isn't a bit of a bit of an I told you so is just an indication that, you know, when we are talking about the kind of new frontier of litigation concerning reproductive rights and justice, it was never just going to

be limited to abortion, right? It was always going to be more expansively concerned with different forms of contraception as well. And, you know, the circuit really underscores that. But the second is the grant in this case reminded me of something that Sherilyn Ifill quoted out the other day from another podcast host, Sarah Kensador, who is the co-host of Gaslit Nation. And Sherilyn quoted Sarah as saying, you could describe women as hysterical and alarmist when they are right too early. And the reason why this cert grant was kind of calling this quote to mind for me is back when President Trump was elected, I said on Twitter something along the lines of like, ladies, talk to your doctors about birth control. And if you have the options of getting a kind of birth control that, you know, might, let's say, last longer than some pills, right, and whatnot, like you might want to do that given like the likelihood that there's going to be a retirement and the change in the Supreme Court. And immediately these white men were like, Leah, like you're being so overdramatic.

Like, why are you being so hysterical? And it's like, you know, you could have seen this. I'm not hysterical. I'm anticipatory. Right. Exactly. I am right too early. So I right after the Trump administration came in, I wrote a piece for the New England Journal of Medicine about, you know, sort of reproductive rights and justice challenges. And I also said that we should look beyond abortion and that contraception was on the table. I got such vitriol from people who are ostensibly physicians. They were just like, this is completely beyond the pale. Everybody knows that no one's trying to take away birth

control. And then I was sort of like, you know, okay, boomer, whatever. And then that Clarence Thomas concurrence in box last year, which I was just like, abortion and contraception are on the table. And now this. So I feel like Cassandra destined to know the truth and not be believed. Exactly. For those of you who did not read the Iliad, Cassandra is the Trojan. She's not the Trojan. I guess she is. She's a princess of Troy. She's the sister of Priam and Paris. And she – or the daughter of Priam, the sister of Paris. And she basically foresees the entire Trojan War and nobody believes her.

No one believes her. That's us. I know. I know. The pain. The pain of it all. Another Sirkrant, as we noted at the end of last episode, is Chiafalo v. Washington and Colorado Department of State v. Baca. These are challenged to the constitutionality of faithless elector laws, which require presidential electors to vote in the electoral college the way the popular vote

in a state goes. So the particular challenges arose from sanctions for two electors from Washington and Colorado who voted for someone other than Hillary Clinton who had won the popular vote in those states. But the court took up this case, I think in part because these issues could very well arise in the 2020 election. 10 of the 538 presidential electors in 2016 cast a vote for someone other than the person who won the popular vote in their states. And, you know, the possibility that this could happen again could have major repercussions in the 2020 election. So there is another cert grant. This one is in Ford Motor Company versus Montana 8th Judicial District Court and Ford Motor Company versus Bandemer. So

they're consolidated together. And they both involve issues of personal jurisdiction and basically just sort of this very narrow issue of whether a plaintiff's claims arise out of or relate to the defendant's activities in the state and what that actually means. And it all sort of stems from two lawsuits filed against the Ford Motor Company in Minnesota and Montana. And the plaintiffs allege that there are problems in the company's cars. And in both cases, Ford explains that the court lacked jurisdiction over it because the car was manufactured and originally sold outside of the states where the lawsuits were filed.

And on that logic, Ford is not responsible for the car's presence in Montana and Minnesota. They were just driven there. Yeah. Who could have seen that coming? So we will, that's, that'll be really interesting for civil procedure people. They're definitely probably going to have to update a casebook or two with that one coming out. So that'll be interesting. And the justice has also asked for additional briefing in Babb versus Wilkie, which we have discussed at great length

on this show. And that's a challenge to the Age Discrimination and Employment Act's pleading standard. And the court has asked the government and the employee here to discuss what other relief besides the ADEA might be available to her in 10-page briefs that are due next week. And I think that this briefing order stems from an allegation that came out at oral argument that perhaps the Solicitor General had misrepresented or just misstated a point of federal law because Justice Kavanaugh had asked the Solicitor General whether an employee would have any remedy or ability to enjoin a policy if an employer had a policy that said younger employees are better. And the Solicitor General responded that, yes, there would be a cause of

action under this civil service statute. So the petitioner's lawyer stood up in rebuttal and said, Your Honor, the Solicitor General's statement about the availability of this remedy under the civil service law is a misstatement of federal law, and it contradicts a statement on the Merit Systems Protection Board website. And so I read this order as asking for a clarification on exactly what remedies might be available under federal law when an employer might have a younger is better policy, and would there be any? Well, we'll wait and see. Yeah. But because there's nothing else in the news, the possibility that the SG might have misrepresented

or misstated federal law, right, of course, didn't even get on anyone's radar. We noticed. And I bet Jennifer Lopez, the next litigant, will notice. We are Cassandra, right? Like, we are screaming about these things and nobody cares. There's so much to scream about. Let's turn to the most recent cases. The court heard some really interesting oral arguments in a bunch of new cases. One of them is really close to Leah's heart, so I'll forestall that for you for a minute. But one is very close to my heart, and that is Espinosa versus Montana Department of Revenue. And this is a very highly anticipated case concerning the First Amendment's religion clauses, and it reprises themes that were raised just a few terms

ago in Trinity Lutheran Church versus Comer, which is a 2017 case. There, the court invalidated a Missouri policy that excluded churches from a state-run program that provided grants to resurface playgrounds. And at that time, the court's majority in Trinity Lutheran was at great pains to emphasize how narrow their decision was. And specifically, in a footnote, the court said that the decision was limited to the facts before them and did not resolve the broader question of, quote unquote, religious uses of funding or other forms of discrimination. And lo and behold, here we are. What a surprise, right? As if the court in a footnote could say, we are issuing a rule that governs only playgrounds, right? And no one would ask them to resolve the larger issue. So we've moved from the playground to the whole school. Right. Exactly. Exactly. This new case, Espinosa, squarely confronts the question that Trinity Lutheran was at great pains

to avoid. It concerns a Montana Supreme Court decision that invalidated a tax credit program because the scholarship created by the program could be used to fund religious schools. And to get a full picture of this, it's really important to get a sense of the history, I think. So the Missouri policy invalidated in Trinity Lutheran stemmed from two state constitutional provisions that had been ratified in the 1870s in the midst of incredible anti-Catholic anxiety in Missouri, but also throughout the United States. And one of these constitutional provisions that Missouri enacted prohibited the funding of parochial schools, and the other prohibited the use of public funds, whether directly or indirectly, to aid any church, sect, or denomination of religion. Those same state-level efforts that happened in Missouri were mirrored in other

places. At the federal level, there was the 1876 attempt to amend the United States Constitution to combat the perceived threat of Catholics posed to the nation's Protestant character by prohibiting public funding of parochial schools as well. That amendment obviously failed, but it did inspire so-called baby Blaine amendments that passed in a number of states, including Montana. And it's that state-level constitutional amendment that is at the heart of this Espinosa case. So the scholarship program was created by the Montana legislature in 2015. It provides a tax credit of up to $150 for individuals and businesses to donate to private scholarship organizations.

And then the donated money could be used to provide scholarships for children to attend religious schools, including parochial schools. And that's really important in Montana because the vast majority of private schools there are actually parochial. And so after the tax program is created, the state's Department of Revenue, in order to comply with the Baby Blaine Amendment in the state's constitution, issues a rule that bars the use of the scholarships in these religious schools. And so three low-income families challenged the rule, and they say that they were relying on the scholarship money to keep their children enrolled in these Christian schools. And relying on Trinity

Lutheran, they argue that barring religious schools from the scholarship program violates the federal constitution. The Montana Supreme Court did not agree with this. And on a theory that religious education is a rock on which the whole church rests, I mean, it's basically a fungible theory of money. Like if the school is being subsidized by the state, other funds can then be relocated to other church business, basically making the money just sort of passing through the church in different forms. So it rejected that claim. And it also rejected the claim that its interpretation of the Montana Constitution violated the federal constitution. So this tees everything up. The plaintiffs are making pretty straightforward First Amendment claims that the Constitution's Free Exercise Clause and Establishment Clause bars the government from

favoring one religion over another or exhibiting anything more than neutrality toward religion. And here they argue that this particular program, which precludes the use of funds to parochial schools, exhibits hostility to religion. So there's sort of shades of masterpiece cake shop in here. That was that very narrow, once again, ruling from a couple of terms ago concerning the collision of liberty and LGBTQ equality. Montana, however, emphasizes that past precedent makes clear that the state can choose not to fund religious groups without violating the free exercise clause and that this case cannot simply follow Trinity Lutheran because it's much more expansive than the issue of playground resurfacing. It really involves

the public funds for the question of public funds and religious education. And therefore, this is not a knee jerk. Just apply Trinity Lutheran. They actually have to be more considered than this. And it's a really, really big case. There is a group, Institute for Justice, that favors greater religious freedom, and they are coordinating the case along with a similar challenge in Washington State. And they are really emphasizing the anti-Catholic nativist fervor that spawned these baby Blaine amendments. And one member of the court, going away from his duties on the pizza committee, Justice Brett Kavanaugh, actually weighed in on this. And so here's a clip from Justice Kavanaugh at oral arguments talking about this history. And I just want to be clear,

we're not defending religious bigotry here, okay? I think no-aid clauses have a principal justification, especially in Montana. They're certainly rooted in grotesque religious bigotry against Catholics. You agree with that? I mean, I think that in the 1880s, there was undoubtedly grotesque religious bigotry against Catholics. I don't think that's a clear motivation for this. What do you think about this, Leah? You know, I think there is so much going on in this case. On this particular aspect of it, though, what I find interesting is, one, the confidence with which some of the justices are fine declaring that, yes, I believe that the purpose of this Blaine Amendment was anti-Catholic

bigotry. I think, right, there is certainly some anti-Catholic animus happening around the time that some of these baby Blaines are made. But I wonder why exactly they find that evidence more persuasive than, say, evidence that anti-Muslim bigotry motivated the entry ban or evidence that, say, the Census Department wasn't actually trying to enforce the Voting Rights Act. So I immediately thought of Trump versus Hawaii. Like, when he made that statement about anti-Catholic bigotry animating the origins of this policy, it's like, you know, there was all of this information in the ether, tweets, presidential statements about Muslims. I mean, clearly anti-Muslim animus. And the court in

Trump versus Hawaii is just sort of like nothing to see here. Right. Exactly. Like it's somehow been cleansed. I thought it was really interesting. Yeah. So I find that disparity or just disconnect very interesting. And Jessica Clark, who we brought up in the previous episode, has actually written an article, Explicit Bias, in which she kind of compares and contrasts the court's ability and willingness to recognize different forms of discrimination and how the trend is toward the court's ability and willingness to recognize different forms of discrimination and how, you know, the trend is toward the courts recognizing discrimination against white Christians and completely unable to recognize discrimination against racial minorities or religious minorities. And then there are all of these sort of state-level challenges using state-level anti-discrimination laws where men's rights groups often challenge these, like the

wing or ladies get paid or other women-only programs that are aimed at dismantling systemic inequalities in labor markets by teaching women how to play golf or how to negotiate or something. And men are bringing challenges, saying that we, under these anti-discrimination laws, should be allowed to come and participate as well. And I think it's really interesting. Bro choice, Melissa. They are bro choice, trying to enforce their bro rights. And the Voting Rights Act. And the Voting Rights Act, of course. I just, I think it's really interesting. I think it suggests the malleability and plasticity of anti-discrimination law. And again, this case is not just about Trinity Lutheran. The seeds of this are in Masterpiece Cake Shop, all of it.

And they're just sort of building on this. It's sedimentary. And it is also, I think, like indicative of what some people say when they say like justice's worldview right influences their decisions because your ability to recognize right a specific influence or instance of discrimination it is influenced by like your perception about how real certain kinds of discrimination are and like how prevalent you think they might be and i just think like some justices ability to recognize discrimination in some cases is like influenced by like their felt perception of themselves or like certain groups being discriminated against. I just wonder to what extent like that's the case. Well, I mean, it's well known that Justice

Kavanaugh is an observant Catholic. So, you know, maybe that's part of it. I can't help but be reminded of Frank Murphy, who was a justice of the court many, many years ago. And there's a case that I teach pretty regularly in both constitutional law and family law, Prince v. Massachusetts, and it involves a Jehovah's Witness who is arrested for allowing her ward, her niece basically who's in her care, to distribute copies of the Watchtower, which is the witness's newspaper, on the streets of Boston well after hours and in violation of a curfew that's in place to prohibit child labor. And she loses her case, the conviction and arrest stand. But Frank Murphy writes this dissent where he notes like, is this really about

child protection? Is this really about protective labor law? Or is this really about sticking it to an unpopular religious group that has disclaimed participation in World War II, which is happening at the time? And it's just incredibly disliked. And, you know, I said this in Trinity Lutheran. I was on a panel with a couple, with Goodwin Liu of the California Supreme Court and Rory Little back in 2017, I think. And I said, when Trinity Lutheran was announced,

would this have been the same if it was a mosque seeking to resurface its playground? I don't know that it would be. And again... You know where the very prescient Justice Murphy went to law school, Melissa? Was it the University of Michigan? It was the greatest school in the country, the University of Michigan. Justice Murphy also dissented in Korematsu. Yes, he did. Yes, he did. Just wanted to point that out. So Espinoza wanted to flag one to two other things, but they're both kind of related. One of the interesting points about this case is what exactly the plaintiffs are challenging.

Because when the plaintiffs originally brought suit, they said this Montana Department of Revenue rule that says you can use the scholarship money for non-parochial schools, but you can't use it for parochial schools. That's facial discrimination on the basis of religion. But now't even have a disparate impact on the basis of religion, since the effects on everyone are the absolute same. Do you know what that reminds me of? What? Palmer versus Thompson. The shadow of Palmer versus Thompson was like very much present in the oral argument in the case. Do you want to explain what that is? Because some of our listeners probably don't know. So Palmer v. Thompson is this challenge. It comes in the wake of the civil rights movement and desegregation throughout the South. And the issue is that the South has obviously been required under Brown to desegregate their schools

and then subsequently other places of public accommodations, including swimming pools. And swimming pools were the big deal. And this locality decides rather than integrate their pool and allow African Americans to use it, they will just shut the pool down entirely. And so the question there is, can you even get to the disparate impact question if there is actually, like, the whole thing isn't even working? Like, no one is being disparately impacted, no one is being impacted at all. And so the chief justice asked the lawyer for Montana pointedly about this hypothetical. Why does that explain why the race analogy is inapt? I mean, the

legislature may say they built parks and pools, and they say we're funding those. But if a higher percentage of African Americans come and use the pools, then we're going to shut down the whole program. And you wouldn't defend that on saying they could have a judgment that it decreases tensions among the different races to keep them. No, you would just look at the facial discrimination, right, and conclude the fact that they, that wouldn't be good under your view, would it? Of course. Because they're shutting down the whole program? So he's basically asking the lawyer, would you be here arguing that Montana's rule is defensible

if the original rule that the Montana Supreme Court had invalidated was racially discriminatory rather than discrimination on the basis of religion. Do you want to say something? Because I definitely have something I want to say about this. No, I'm waiting for you. Okay, go. I'm making faces. This is one of the difficulties about not doing a live show is that no one is going to see the faces that the Cassandras are making here.

The worst thing about all of this is that we both have, our faces have no chill. Right. Like my face, your face. Our faces are always moving. You can always tell. We are the worst poker players. So you can take us for all the money because we can't hide anything.

No poker face at all. So one thing I find super interesting about this is the freedom with which some of the justices and some of the advocates feel in their ability to say this discrimination on the basis of religion is exactly like discrimination on the basis of race. Or we can use the racial discrimination analogy in order to illustrate why discrimination on the basis of religion is inappropriate. But when advocates for LGBT equality make this same analogy, arguing that, right, the pattern and practices of discrimination on the basis of LGBT status are similar to different forms of racial discrimination, that is considered, right, a form of religious discrimination and an affront to certain religions, right? Like this was part of the evidence in Masterpiece Cake Shop that the court pointed to as a reason why the Colorado Civil Rights Commission was biased against religion because they deigned to analogize discrimination on the basis of sexual orientation to discrimination on the basis of race.

Well, not even that they deigned to analogize to it, that they stated truths. Like they talked about the idea of religion being used to justify slavery. That was deemed objectionable and potentially hostile to religion. That's true. Like that's like objectively true. Feelings are more important than our facts sometimes, it turns out. Micah Schwartzman and Leslie Kendrick at the University of Virginia wrote a terrific piece, The Etiquette of Animus in the Harvard Law Review, about this very question and what it means to be civil as a matter of constitutional law and doctrine. I think it's terrific. I would also

like to highlight the work of a junior scholar, Joy Milligan at the University of California, Berkeley, who wrote a great piece a couple of years ago, Religion and Race on Duality and Entrenchment, addressing a number of these questions about whether or not these analogies are really apt. And I just think there's a lot of really interesting work being done here. None of it is being surfaced in these arguments. But, you know, I think that is likely the point. Yeah, that's true. Although, you know, the lawyer for Montana, Adam Unikowski, who I should flag, is just an amazingly skilled Supreme Court advocate.

And Justice Kagan both took pains to say, like, I don't know how comfortable we are with the race-religion analogy, given that we come up with, like, a few different reasons why it might be legitimate for states to fund certain non-religious groups or programs without doing something similar for religious groups or programs. So I thought that they were both trying to push back on that analogy, even though it seems like a majority of the court is very enamored with it. There's so much to say about this case. And also the other thing worth noting is that star sighting in the courtroom, Betsy DeVos was there. Betsy Prince DeVos

of the great state of Michigan. She did not go to UM. We do not take any blame or credit for her. I'll just say. Or Blackwater. Right. Or that. So, I mean, that tells you the stakes here because, I mean, she is there because the federal government wants to do a similar kind of tax break scholarship program that would go to benefit, whether through vouchers or

something else, religious schools, parochial schools, things of that nature. So, I mean, the stakes are really high about how this gets farmed out. And obviously, this will have huge implications for the voucher debate, all of it. So she was there in the first row, I think, in the same sort of area where Chris Christie had been sitting for Bridgegate. They reserve the specialist seats for the specialist people. The best people.

The best people. Right. We could probably honestly talk about Espinoza for... No, no, no, we shouldn't because there is an actually ACA awesome case on the docket that I really want to hear a lot about. I am so glad you are drinking the ACA Kool-Aid, Melissa. You know, I love it. And we just want to shout out to all those AUSAs who listen to this, including my good friend Kevin Ritz out there in Tennessee who listens to this too. This ACA

bit is just for you. So Leah, take it away. Okay. So the case is Shular versus United States, and it concerns the proper interpretation of ACA's definition of a serious drug offense. So the way ACA works is individuals who are guilty of being a felon in possession of a firearm, typically the maximum term of imprisonment is 10 years. But if you have three or more prior convictions for either violent felonies or serious drug offenses, then you are subject to a mandatory minimum term

of imprisonment of 15 years. So Eddie Lee Shular pleaded guilty to being a felon in possession of a firearm for holding his mother's gun while she remodeled her home. He had several different prior Florida drug convictions. Yeah, we're going to come back to that bit in a second. He had several prior Florida drug convictions. And the question was whether those drug convictions counted as serious drug offenses. ACCA defines a serious drug offense as

an offense under state law involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance. And the question— Wait, can I—so this is kind of different from the typical ACCA case. Like, so a lot of the cases have been around the violent felony provision and what actually constitutes a violent felony for purposes of the statute. But there's been very little said about the drug offenses provision. Yeah, that's exactly right. Most of the court's ACA cases concern the different definitions of violent felonies. And here, the court is trying to figure

out what involving manufacturing, distributing, or possessing with intent means. The defendant, Eddie Shular, is arguing that the words manufacturing, distributing, or possessing with intent either describe generic offenses that have mens rea elements, that is, they require you to know that you're possessing a controlled substance, or he argues they describe conduct, which itself has the mens rea requirement of knowing that you are manufacturing, distributing, or possessing a controlled substance. The government, on the other hand, is arguing that these words just describe conduct. That is, you don't have to define these generic offenses, and you don't have to ask whether the state criminal offense required the defendant to know if they were knowingly distributing

a controlled substance. So, you know, it's a statutory interpretation case. Both sides have, I think, some good points in their favor. You know, the defendant is arguing that the government is effectively transforming ACCA's serious drug offense clause into the element of force clause. The element of force clause is the provision that defines a violent felony as something that has as an element the use of force. And the defendant is like, well, look, government, you basically want us to ask whether this

state offense has as an element or involves this particular conduct. That's the element of force clause. And the government is saying that the defendant is transforming the serious drug offense clause into the enumerated offense clause in that the defendant wants the courts to measure the defendant's state offense against generic definitions of the federal offenses. You know, in the backdrop of the case is the court's real discomfort with its experience with ACCA. You know, the court has had to invalidate a few different provisions of federal

law because it adopted an interpretive approach that rendered those provisions unconstitutionally vague. On the other hand, some of the justices are a little bit nervous about the unknown and expanding this definition of serious drug offense to mean anything that involves particular conduct, given that certain courts of appeals have interpreted involving conduct pretty expansively. So they've said, if you merely possess some drugs, well, that relates to manufacturing, right? It's pretty closely tied to it, and so on. So, you know, where to start with this one? I want to start somewhere. We just talked about Bridgegate last week, and there just seemed to be so much skepticism in the Bridgegate oral arguments about whether or not the government had properly used the available statutes to deal with this issue of political crime or political

malfeasance. And the court seemed to be of the view that politics is dirty. New Jersey politics is especially dirty. And the government kind of overreached and kind of tried to fit the square peg of these particular acts into the round holes of these wire fraud and mail fraud statutes. And they seemed worried that there should be broader discretion and that prosecutors, if they were allowed to do this, would just like exercise their discretion to the hilt and just like everything would fall in. Here, they don't seem to care about curbing prosecutorial discretion at all. It's so frustrating, Melissa, care about curbing prosecutorial discretion at all. It's so frustrating, Melissa, and you made a joke about this at our live show.

You were like, I'm so glad the court is reining in prosecutorial discretion across the board, like in drug cases. Just another Cassandra moment. Yeah. No, you really obviously saw this one coming because, as you were saying, in Kelly, the court is completely unwilling to say, well, we just trust prosecutors to only bring the serious cases, you know, and not to prosecute the state employee who just picks up the telephone in order to do a personal favor. Whereas in this case, Justice Alito and some of the other justices were just completely unwilling to say, well, maybe states and federal prosecutors would push the limits about what this would mean. So for example, the defendant was arguing, if you read the words following involving not to involve a men's radio requirement, that means you could prosecute a

mailman, right, who's transporting something that they don't know carries drugs. And Justice Alito and the other justices are like, well, that's obviously never going to happen. No prosecutor is going to bring that case. To which I want to say, like, look, this guy is facing a 15-year minimum because his mom asked him to hold her gun while she's remodeling his house. I mean, like, let's just say,

I'm like, I'm not holding anyone's gun. Like, that to me is like, beyond dumb. But like, like, okay, leaving stupid aside. But like, does right, making a stupid mistake, right, carry within a 15 year mandatory minimum, you know, that that should make, I think people uncomfortable. And, you know, the other part of it is there are, you know, often drug prosecutions where someone will just be in a car, right, where drugs are found. And it's not always clear that they knew the drugs are there. It's certainly not clear they were in the business of transporting or distributing them. So, you know, I think it's really unfortunate that you see some justices

being pretty inconsistent in their relative faith on prosecutorial discretion in these cases. And, you know, as if the stakes of these cases weren't clear, the court had on its docket another pending ACCA case, Walker v. United States, in which counsel for Walker just recently this week filed a notice of his death. And, you know, the reason I wanted to flag that is because ACCA dramatically changes the scope of penalties, right? Like if you were convicted of being a felon in possession of a firearm, you could be sentenced to little or no prison time. With ACCA, you're going to be subject

to at least 15 years and possibly be sentenced to die in prison. And the idea that the court is just completely willing to outsource this faith in prosecutors and expect them never to test the limits of these statutes is, I just think, really disappointing that they were just unwilling to indulge the defendant's arguments that the defendant was making here that were quite similar to the defendant's arguments in Bridgegate, Kelly. It was supposed to be a sleepy session for the court. January was supposed to be pretty sleepy, but I actually thought there were a lot of fireworks. Espinosa is really interesting. Shular is really interesting. Bridgegate, certainly. I mean, there were a few sort of low-key moments with Romag, but even that had some fireworks. Yeah, I feel like we've done some heavy episodes, this episode and last. So maybe we can highlight some moments of levity from oral argument in the January sitting. Well, perhaps we can do.

I will note that they are going on a four-week recess. That's true. So I think they're in need of a rest as well. So they will get that. The chief won't get it because he will also be doing some things. But I wanted to flag something that happened in Romag, which we literally have talked about a lot. This was one of our fashion cases. Last week in the live episode, Jamie raised some of the kind of weird possibly gender dynamics between the two advocates, Neal Katyal

and Lisa Blatt. But there is another interesting snippet that I wanted to call to your attention. And this is a really interesting snippet that comes from Justice Breyer, a former copyright professor. So he probably had lots to think about in this case, but how not to read as a law student by Justice Breyer. Does anybody argue about this sentence? Yes. In your briefing, you're briefing? Yes. Good. Where am I going to read it? I mean, it's in the intro and it's in the... I obviously, you know, sometimes I read it fast. I, in Lucky Brand Dungarees, which we also talked about in conjunction with Romag a couple of episodes ago. But they did a little, like, frolic down memory lane, their time at Harvard, as one does. Here you go. I thought in 1961, in Al Sachs's procedure class, and things may have changed,

that I learned that the second suit is a new suit. And therefore, people can raise claims that they are not collaterally stopped on. Isn't that- Because they- Is that right good conclusion? What? I mean, I thought Justice Ginsburg

said exactly that. And she said that and it took her about a minute and it took Al Sachs, I think, about an hour. You know, I feel like we oftentimes find ourselves

playing clips from Justice Breyer, but I just can't, I just can't help it, right? Because he just, he has no filter. You are just getting his real time thoughts in these oral arguments. Right. He's just saying Walt Whitman, the Walt Whitman of the court. It's like all stream of consciousness. you know, can you help me out? Also, you know, this like very endearing exchange where he says, you know, Justice Ginsburg just explained civil procedure is so much better than my professor at Harvard. It's just, it's pretty fun. There's a lot going on here. I think it is actually hilarious that he's just like, time out. I know you guys are, this is like the most important

argument you've ever given in your career. Wait a minute. I've got something to say about Harvard Law School civil procedure. Hold the phone. Yes. Good for him. All right. With that in mind, let's do a quick recap of some court culture. What's on tap? What's the cultural moment, the cultural zeitgeist around the court saying, Leah? Well, I think we wanted to flag some happenings from earlier in January, one from the Association of American Law Schools conference. I know you had previously discussed with Kate the panel that Justice Ginsburg participated in at the AALS conference. Not really a panel, like a keynote conversation. It was just like a fireside chat that she had. But there were a lot of really terrific panels at that conference in early

January. It's like the big law professor conference takes place right before the spring semester starts. And I think almost every law professor goes to that for the most part. And there was a really interesting discussion that actually threaded through a number of different panels on the question of recruiting and retaining a diverse faculty, much of it inspired by a book written by Mira Deo, who's a professor at Thomas Jefferson School of Law in San Diego. She's visiting this year at the University of California, Davis, and her book is called Unequal Profession. And in it, she chronicles the trajectory, paths, triumphs, low points of a group of professors. She's done a bunch of different sort of anonymized interviews. Some of them are people of color, some of them are women of color. Some are white men. But she takes it all together and tries to sort of show the different experiences that people have based on race and gender and sometimes the intersection of both as they've attempted to navigate their careers in the academy.

And she notes as an empirical portrait, the academy is almost 75% white, right? 25% minority. In terms of men versus women, it is also overwhelmingly male, right? And women of color make up just 7% of the professora she tells us. And that's actually not a surprise to me. There have been a number of academic situations where I've been one of a handful, if not the only woman of color in the room. So that actually didn't really surprise me. I was surprised given the changes that have been made and the number of women going to law school now that men still seemed to dominate the professoriate. And there were a lot of discussions about that. So she had one terrific panel where she presented her work and people

responded to it. And then there was another panel that I moderated on how to recruit and retain a diverse faculty. And it touched on a lot of different themes, including the question of lateral recruiting. And that's when professors get hired from a school where they've already started and then lateral over to another law school. And traditionally, the mechanism for lateral hiring has been to have a prospective candidate do a year-long or semester-long, quote-unquote, visit at the school that might be interested in hiring them. And the whole idea is that it's kind of like this audition, like a semester or year-long audition where you're kind of showing this new faculty who you are and they get to decide whether they want you and you get to decide whether you want to be there. And so it prompted, I think,

a lot of discussion about the gender dynamics of visits because I think at times sort of searingly visceral essay about her own experience visiting at a couple of different law schools. And it was on Medium. So you want to give a kind of recap of some of the things she identified? Yeah. So in addition to some of the obstacles and challenges to visits you identified, namely obligations you might have at home or primary caregiving responsibilities, Tess talked about, I think, kind of the lack of communication that sometimes go along with visiting offers. So she, for example, mentioned that in some visits she had, she just never heard anything one way or another about the school's consideration of her candidacy. No, she literally got ghosted. Yes.

Yeah. And that happens all the time. I mean, if you're not in a law school faculty, if you're a student or a lawyer just listening to this, the appointments recruiting process is handled largely by professors. I mean, there isn't an HR department. The HR department may coordinate things, but the actual work is being done by professors in conjunction with the administration. And I'll just say, it's really weird to pass judgment on other colleagues, whether they're at your school or not. And I think a lot of people try to avoid the hard

conversations like, yeah, this isn't going to work out by just not saying anything. But it makes it even more awful. Yes, exactly. So that was one thing that she flagged in the essay. Another thing is she mentioned the kind of gendered and sometimes racialized criteria that people use to assess, you know, someone's capabilities. And when you are constantly being subject to being evaluated and watched over the course of the semester, and people code different behaviors and, you know, different kinds of smart, you know, differently depending on, you know, whether you are white or not, or a man or a woman or,

you know, that also kind of creates a problem in this visiting system slash pipeline. And then she also mentioned, you know, one of the costs of these visiting systems is, you know, for people who harbor some sense of, you know, self-doubts, as frankly, a lot of academics do, you know, the aftermath of these visits can be really hard because you feel that everyone at this school has basically judged you unworthy. You think about all the reasons that might be, and that can really interfere with someone's ability to write and kind of, you know, like go on and succeed after that visit. I remember someone who had done a visit, not at my school, but was explaining

the thought process. And she was saying that, you know, she gave this job talk, but then she had to hang out for like, you know, another month and a half before the semester was over. And the school was not really forthcoming about had it been great? Was it terrible? It was just sort of this weird kind of non-issue that was obviously a big issue for her. And she said it was like having a one-night stand and then the next morning being like, are we dating? What are we doing? I was like, I mean, it's awful. The dynamics of it are awful. I will say my one lasting contribution to legal academia may be that I tell everyone that I successfully visited, but only because I asked both of the schools, NYU and the University of Chicago, to give me mini visits. Like, I was living in California.

There was no way that I could leave my family and move them across the country for a semester or a year. And there's also no way I could fly back and forth. I wasn't going to do it. And they actually were very accommodating. And more schools are, I think, getting on board that if you want to sort of diversify your faculty, make the lateral market a little more diverse than it is, and you won't relent on this question of visits, maybe a shorter visit is fine. Although I will note that the University of California, Berkeley, where I taught before, did not have a visit requirement to make a lateral offer. And that was explicitly

because the visit was understood to disadvantage certain groups more than others. Yeah. So we also don't have a visit requirement at the University of Michigan. But you're still in Michigan. So I'm kidding. I'm joking. You know, I wanted to flag one thing you mentioned about the AALS panel and the kind of the disparity between the number of women at law school and the number of women in the academic profession, because there was recently an article out about how all of the editors-in-chief of the kind of top 16 law journals are women. And, you know, you were quoted in this article. And, you know, I think that this is a wonderful sign of progress. It's a wonderful thing that happened. Of course, no one would think anything about all the editors-in-chief just being men, right? Because that's just the state of affairs, we just kind of assume. I just thought that statistic was

interesting, because in some ways, it parallels to me the disparity between, you know, the increasing number of like women who are Supreme Court clerks, but still women haven't been able to break into arguing regularly before the Supreme Court. And there is still this persistent disparity in academia between women and men. I think your colleague, Rachel Barco, you know, was quoting out, yes, this is, right, great progress. But if you look at all of these numbers, like women still are like vastly underrepresented in academia and among research scholars. And so like this just like we should not be patting ourselves on the back and thinking,

ah, yes, we have solved everything, right? Because you can identify these instances of success. Yes, I think that's right. Should we wrap it up? All right. That's all we have time for today. And thank you so much for joining us. As always, we are very grateful to Melody Rowell, our terrific producer, and to Eddie Cooper, who does the music for the show, and everyone else who helps us to get this out there and into your ear holes. As always, you can follow us individually at our Twitter handles. They're all available. You can find us pretty easily. And you can also follow us collectively at strictscrutiny underscore.

And you can support the pod in so many ways and look great while doing it. We have fantastic merch, sweatshirts, chucker hats, all the things that Chief Justice Roberts wears when he's put in a meme. And that's all available on our website, www.strictscrutinypodcast.com. You can also support our GLOW campaign, which is a subscription service that helps us to pay Melody a living wage. So can you tell them a little bit about where they can find that information, Leah? Yes. So you can find the link either on our website or you can go directly to glow.fm backslash strict scrutiny. I think if our listeners knew the number of times we were saying, Melody, cut this or

make this clean, Melody, they would understand the amount of work that goes into all of these episodes. Editing each episode takes her several hours and we know we want to be able to pay her for her time and this glow campaign is how we are hoping to be able to do so after party starts now until later thanks for listening