Strict Scrutiny - Comrade Thomas

Episode Date: June 25, 2021

Kate and Leah recap the big FRIDAY, FRIDAY at the Supreme Court -- two statutory interpretation cases (Confederated Tribes of the Chehalis Reservation and Hollyfrontier Cheyenne Refining Co), and a major standing case (TransUnion v. Ramirez). Follow us on Instagram, Twitter, Threads, and Bluesky

In 2015, Vladimir Putin's number one public enemy, Boris Nemtsov, was shot and killed in front of the Kremlin. He was a relentless critic of Putin, corruption, and war in Ukraine. Then he was assassinated. I'm Ben Rhodes, writer and co-host of Pod Save the World, and I'm teaming up with Boris's daughter, journalist Zhanna Nemsova, to tell his story in Crooked Media's new podcast, Another Russia.

Together, we uncover what happened to one family and an entire country and ask whether another Russia is possible. New episodes every Monday. Listen and subscribe wherever you get your podcasts. 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've been pretty heavy on the Supreme Court part of that bit as the term is winding down, but don't worry, we have a lot of great court culture material in the hopper and scheduled for this summer. We are your hosts. I'm Leah Littman. And I'm Kate Shaw. And we are coming to you now as Leah previewed with yet another quick hit emergency episode that's recorded just hours after the court hands down opinions. So the usual caveats apply. We reserve the right to refine and add to our takes. We usually have at least a few days to mull these opinions over before we share them with you, but we're skipping over that step. Okay, so today we're going to be covering the opinions we got on a Friday. You know, it's unusual that we get opinions on a Friday.

I actually can't remember the last time the court added a Friday to its opinion calendar. It seems less typical. The justices and all of us are ordinarily, you know, taking Fridays off, not responding to opinion handouts. Maybe Justice Alito or the chief were blaring Rebecca Black's classic Friday, Friday, got to get down on Friday. So they just channeled that vibe and started releasing opinions. I don't know. Maybe Justice Alito needed to wash away that Pete Wentz fallout boy energy he's been stewing in for the last few weeks, just to cleanse the palate. Good theory.

Okay, so a few quick pieces of news before we get to the opinions one thing is that the biden administration announced that it is extending until the end of july the center for disease controls eviction moratorium which was set to expire on june 30th this change is potentially significant because as we noted on monday's episode the court has beforeed an application to prevent the cdc from enforcing the eviction moratorium. A district court had invalidated the moratorium, but stayed that ruling. That is, didn't have its ruling go into effect. And a group of Alabama realtors went to the Supreme Court asking them to basically overturn that stay, allow the district court's decision to go into effect, and prevent the CDC from enforcing the eviction moratorium.

When the moratorium was set to end in June, the moratorium would have had like basically two weeks left by the time briefing was completed at the court. And that might have been a reason for the court just to let the moratorium expire and do nothing. Now, that's less of an option with the moratorium being extended for another month. I still think the court shouldn't disturb the stay for reasons we talked about, namely the district court invalidated the moratorium, but still concluded after balancing the equities that that ruling shouldn't immediately go into effect. But I think extending the moratorium changes the calculus and perhaps puts on the table the option for the court

to vacate the rulings below and direct the district court to take another look at it now that the moratorium has longer time horizon. And the second piece of news we wanted to flag was that just before we started recording, Attorney General Merrick Garland announced that the Department of Justice is bringing a lawsuit against Georgia's voter restrictions, the ones that were passed in the wake of the 2020 election, as a violation of the Voting Rights Act. So it is actually enforcing the Voting Rights Act. Interesting that they- At least while it can. Well, because it's Friday and Brnovich is going to come down next week because we didn't get it today. That's the big Section 2 case out of Arizona.

So, yeah, just under the wire going to get this announcement out. We don't actually really know what shape the lawsuit will take, but it is interesting that they announced today that they would be bringing the suit. Right. And then Brnovich will return us to the good old days where diluting the Voting Rights Act is what's necessary to enforce the Voting Rights Act. Exactly. There you go. Now to the opinions we actually did get today. The first is TransUnion versus Ramirez. When we were debating whether or not to do a quick hit, once TransUnion came down,

that was an immediate reason to do the quick hit emergency episode because this is an important class action and standing justiciability case. It's also the case in which noted squish Justice Thomas continues his further drift left. Again, this is a joke. He is not drifting left. But this does now make two opinions this week where he has joined the court's three liberal members in dissent against a five justice conservative majority. This also makes it the second example this week where the shift from the 5-4 conservative court to the 6-3 conservative court made a difference. Had Justice Thomas voted with the liberals

while Justice Ginsburg was still on the court, they would have had a 5-4 majority rather than being in dissent. So I definitely agree that Justice Thomas is not drifting left, but I am honestly, I feel like I'm ready to say that something is up with him.

Theories include maybe he is a very persuasive, sensible pragmatist among his law clerks this term. Maybe he is finding the kind of ostentatiousness of this new crop of justices as the standard bearers of textualism and originalism a little off-putting. I am not sure. But between him writing in Arthrex to say it was crazy to conceive of these administrative patent judges as principal officers, his argument in Collins that an impermissible removal restriction doesn't necessarily render government action invalid, this opinion, which we'll talk about, I just, you know, I feel like something is up. I'm not ready to commit to a theory about what. But, you know, one or two data points I was willing to write off. But after today, I think that there's something afoot with Justice Thomas. Yeah, probably something afoot, not enough to start calling him Comrade Thomas. Definitely not.

So this case, TransUnion, concerns the interaction of two doctrines or procedures, the class action device and Article III standing, though I think it ended up being more significant as a standing case. The case concerns a class action lawsuit, a lawsuit you bring on behalf of yourself and others like you, for violations of the Fair Credit Reporting Act. The plaintiff, Mr. Ramirez, argued that his credit reporting agency, TransUnion, failed to use reasonable procedures

to ensure the accuracy of his credit file, leading to an erroneous report that he was on an OFAC list as a national security threat. And it is unlawful to transact business with people on the Treasury Department's specially designated nationals list. Mr. Ramirez discovered this fact when that information was shared with a third party, the car dealership where he sought to purchase a car. But other people didn't have the mistaken OFAC alert delivered to a third party.

They just received it themselves. After Mr. Ramirez received this alert, he requested information from TransUnion. The first mailing he received said there were no alerts on his account and contained a summary of rights. The second mailing, however, alerted him that his name was a match to names on the OFAC list. After that, Mr. Ramirez brings this suit on behalf of all people to whom TransUnion sent a mailing like the second one, that their name matches a name on the OFAC list and doesn't contain a summary of rights. He argued that the credit reporting agency had violated the Fair Credit Reporting Act in three ways. First, by failing to follow reasonable procedures ensuring the accuracy of the information.

Second, by failing to disclose all information when making a disclosure to a consumer, and third, by not sending a summary of rights together with third mailing that contained the disclosure. Some people in the class, like Mr. Ramirez, had false credit information reported to third parties, but others did not. And the bottom line in the court's opinion is that only those people who had false credit information shared with third parties have standing. The original overall class had 8,000 or so members. The court finds that only the subset of about 2,000 have standing. And to understand the significance of this opinion, a quick word about standing and causes of action. So standing doctrine, as we talked about in the context of the Affordable Care Act case, California versus Texas, is just the idea that only plaintiffs who are injured by some challenged action can bring a lawsuit in federal court. Now, in previous cases,

the court has said that it is easier for plaintiffs to establish an injury, in fact, if Congress by statute gave them some statutory right and authorized them to sue for a violation of that right. Basically, even if you weren't injured in the absence of a statute, you could be injured once Congress created a right of action. The idea is, in part, that when Congress authorizes you to sue and gives you a right, that's Congress's judgment that you're injured. So, you know, the question is where the court might get off saying that you are not injured. So in a bunch of cases, the court has struggled to draw the line and say

when, if ever, Congress giving you some right and a right to sue still means you don't have standing. In Lujan v. Defenders of Wildlife, the court said the so-called citizen suit provision of the Endangered Species Act didn't give a plaintiff standing. But the citizen suit provision was odd in that it literally authorized any person to sue. It didn't actually create a right in any particular class of people. Then the court took a bunch of cases that might have decided the issue of when Congress does create a right in a particular class of people, when that nonetheless isn't sufficient for standing. But the court never actually came to an ultimate resolution in those cases.

It dismissed, as improvidently granted, the first effort in First American v. Edwards. It ended up vacating and remanding lower court decisions in Spokane v. Robbins and Frank v. Gauss. And in those cases, the court only said that, well, look, there has to be some concrete injury in addition to particularity, but it give rise to standing. And that could have significant consequences in a bunch of other cases as we'll discuss. And the court also made some other noteworthy conclusions that we'll go over as well. So what is new in this decision? The court first reinforces the rule that all class members must have standing. Or put another way, you can only get damages on behalf of class members with standing. And this is another device, of course, for limiting the potency of class actions, which, of course, the Roberts Court has been quite hostile to. You know, the court has went out of its way in decisions like Jennings v. Rodriguez to raise

questions about whether cases should proceed as class actions, even when that issue isn't raised. It's also imposed additional limits on class actions like at Walmart versus Duke's, you know, the massive sex discrimination lawsuit against Walmart. The more important point in the court's ruling in TransUnion, however, is about what kinds of injuries count for purposes of standing and when a congressionally created or recognized injury does not give rise to standing. This is a big deal beyond class actions. Again, it concerns when a violation of a statute for which Congress has authorized someone to sue isn't sufficient to give rise to standing.

Instead, what the court says is the plaintiff has to show a concrete harm and basically convince the court that they've suffered an actual or real injury. The majority emphasizes that courts should assess whether the alleged injury to the plaintiff has a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts, that is, whether plaintiffs have identified a close historical or common law analog for their asserted injury. Ah yes, another excellent effort to find clarity in common law analogs and history. Cannot wait for this to go well. First, the court rejects the idea that a credit reporting agency's

failure to follow reasonable procedures leading to false information about the plaintiffs is an injury if the person who receives that false information is the plaintiff themselves. The court says that's too different than the common law tort of defamation, which requires publication. And that's why if the false information is distributed to a third party, you have standing, but you don't have standing if it's not. Then the court has to address the plaintiff's argument that they experienced an injury because they suffered a material risk of harm. That is, with the false information in their credit report, there was a material risk that that information would be disclosed to third parties, which of course is what credit reports are for. The court says that doesn't work because here the

plaintiffs sought damages, not injunctive relief. You can think of this move as kind of a reverse Lyons rule that says you can't establish standing to recover damages based on a future risk of harm. Lyons, of course, was the case that said a plaintiff seeking an injunction had to show a risk of future injury. You couldn't get an injunction just because you had established previous or past injury. Here, the court says a plaintiff seeking damages has to show a past injury. That is, it's not enough to show a risk of future injury, at least until the exposure to a risk of future harm creates a separate or independently concrete harm. I hate this. I obviously think Lyons is wrong.

If you're interested in Lyons, we actually discussed that in our separate podcast, Irrational Basis Review. That's like an introduction to constitutional law. Someone who had been subjected to an unconstitutional chokehold, but couldn't convince the court that he was likely to again suffer an unconstitutional chokehold and thus could not proceed in federal court. I know Leah is like shaking her head. Like scratching my face. Yeah, no, it's, I think it's interesting way to think about this case as like animated by similar and similarly misguided logic. Yeah, and it's just, again, it is unnecessarily formal once you conceive of it through the lens of Article III and the court's definition of injury. Here, again, in TransUnion, the court has said, well, what you need is a concrete injury, right?

Something that's real. Well, if your risk of future harm is sufficiently real and concrete to allow you to sue, then who the F cares what kind of remedy you're seeking for that concrete, real risk of future harm? Why can't you just seek damages for having been exposed to a risk of concrete harm? It drives me bonkers. Justice Kagan, at oral argument, brought out how this division was artificial and just didn't make sense in a world in which you were conceding that there was a substantial risk of harm that would have allowed the plaintiffs to seek injunctive relief during the period in which they faced that risk of harm. So let's play that clip here. Mr. Clement, suppose that there's a carcinogen, which when it is in your drinking water, you have a 50% chance of getting cancer. And suppose Congress passes a law that everybody exposed to that carcinogen can sue and obtain statutory damages. And suppose that there's a class action of people exposed to that carcinogen. Does that satisfy Article 3?

I think that probably would, Justice Kagan, but if this were a weird carcinogen that worked in such a way that like a year later, you could tell whether you were in the 50% risk or the 50% safe category, and then you sued for statutory damages retrospectively on behalf of the people who averted the risk, I think you might have a different result. Yeah, so that's interesting, Mr. Clement, because that takes us back to the question that you and the Chief Justice were talking about. Now, in my hypothetical, unlike with the Chief Justice's question, you agree that retrospectively there is standing, right? So if you just, you know, you're within a five-year period, let's say, nobodyiffs who faced this risk of harm, that's the end for standing. There is a case or controversy that federal courts can hear.

Maybe because this distinction is so strange and artificial, the court actually goes out of its way not only to say that the plaintiffs sought the wrong kind of relief for future risk injuries, that is, they sought damages for a risk of future harm, but also that maybe there wasn't even a sufficient risk of their false credit reports being disclosed to third parties. So the court says even apart from that fundamental problem, the plaintiffs did not factually establish a sufficient risk of future harm to support Article 3 standing. I think this is just insane. Again, what are credit reports for? They're not prepared, so they just like sit there in isolation and an individual just like admires their credit score in the abstract. Like the credit score and credit report is created so that you can do deals with third parties. And here, the plaintiff sought damages for a period that was 46 months long. That's almost four years. And really, you're saying there wasn't a sufficient risk that their credit reports during that period would ever have been disclosed to a third party?

Like, what universe are you living in? Yeah. And incorrectly containing this like really damaging information that lists people as terrorists, essentially terrorist watch list. So this is a non-trivial harm for probably the majority of those class members who will have these credit reports accessed. Could there have been some different showing made at trial about the likelihood of access? You know, I don't know the record well enough to say, but it certainly seems from the perspective of common sense as though the risk was very real for the entire class. Yeah. You can imagine a universe where after this opinion, maybe plaintiff's attorneys introduce additional evidence about the likelihood that a credit report is disclosed during any period. Again, though it's unclear like what evidence the court would say is sufficient to give rise to a sufficient risk. This is just my bad place. I feel like I am at the

valley that mirrors the peak of Borden. This is an opinion by Justice Kavanaugh restricting access to federal court based on a theory that I argued was wrong in my very first law review article. It's just, thanks, I hate it. And again, like, it's just, it's just like slobbery and conclusory in places. So, you know, we talked about that conclusion about the plaintiffs not facing a risk that their credit report was disclosed. He also says, moreover, the plaintiffs did not present any evidence that the 6,000 class members even knew there were OFAC alerts in their credit files. But the class that was certified was for people who received a second mailing like Mr. Ramirez had, that is, who received a mailing letting them know that their name matched a name

on the OFAC list. And the majority's only response to this is like, well, maybe they didn't open the letters. It's again, it's just very strange, like what they are saying is plausible and isn't plausible. And I think it's a real failure to empathize with people who might be in a different financial situation or socioeconomic status as you. Like, when I got credit reports, like, right after college or material from a credit card company or a credit reporting agency, like, I opened them immediately because they were a big deal. Like, they're still, you know, a big deal, but, like, not as much of a, like, a day-to-day going to, like, affect my life thing. And I just, again, not caring for any of this. So, thankfully, my girl Elena had a response in a dissent, though it's not the principal dissent, and she argued that the majority's theory actually inverts standing

doctrine, which could have been and used to be a doctrine that insulated the lawmaking branches from judicial review. It basically functioned as a shield for the lawmaking branches against the courts. Here, however, the majority is using standing doctrine as a sword for the courts to use against Congress, basically saying even though Congress has created this right and authorized people to sue, that's not good enough. She says the court here transforms standing law from a doctrine of judicial modesty into a tool of judicial aggrandizement. I think that Kagan dissent really captures this kind of maddening quality of the majority opinion, which is both its maximalism and its minimalism, right? So it's like this power grab as against Congress, which, you know, is identifying problems and creating rights and expecting courts to allow

individuals to enforce those rights and basically telling Congress like, sorry, like you thought you did a thing, like, you know, you didn't do it, you didn't do it right, or you don't have the power to do it. And so we're not going to hear these claims. And it's also, you know, minimalist in terms of the kind of access to the court's provision, right? So we're going to assert our power as against Congress, and we're going to sort of say, we get to decide whether you can create a right, and we're going to sort of slam the doors to court. It felt like as I was reading this, it's like this kind of city of Bernie versus Flores meets Iqbal, right? Like judicial supremacy and then denial of access to court. So all of the kind of pathologies of multiple lines of Supreme Court cases in one neat package.

Yeah. One little ball of horrors. It's funny that you say like minimalism, right? Because like, this is minimalist in the sense that it like minimizes the number of cases that can be like brought in federal court but it's just anyways then the court has to proceed to address the second and third theories of injury that the credit reporting agency didn't disclose all of the information in the credit file in the first mailing and that it didn't provide a summary of rights in conjunction with the second mailing that did contain an OFAC alert. The court says these aren't injuries because, quote, the plaintiffs have not demonstrated that the format of the mailings caused them a harm with a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts.

A quick note that this analysis is like two pages, which obviously contains a super extensive and thorough examination of all the things at common law that could have possibly provided an analog for this suit. But it also just frustrates me because the majority obviously thinks that the publication difference, the fact that this isn't shared with third parties is like a key difference, you know, between this claim, the Fair Credit Reporting Act claim and the Common Law Tort of Defamation. And it's like, well, well, why? Like, which differences do you think are significant? The court also rejected the theory that this, the, you know, second and

third theories of injury constituted what is called an informational injury. In a line of cases, the court had said where Congress provides a right to information in people, that's an injury in fact. And the court says, well, it's not that they failed to receive any information. It's just that they received it in the wrong format. Justice Thomas, who wrote the principal dissent, we'll get to in a second, is really not a big fan of this opinion or this analysis in particular. And he says, look, even assuming that this court should be second guessing, standing in so-called private rights cases, which we'll explain in a second, this is a rather odd case to say Congress went too far. Transunions misconduct here is exactly the sort of thing that has long merited

legal redress. And he notes that the jury found the defendant failed to clearly and accurately disclose information and willfully failed to provide a written disclosure, a summary of their rights with the written disclosure. I would not be so quick as to recharacterize these jury findings as mere formatting errors. And again, I think this gets back to this point I was making earlier, which is for people for whom the credit score really matters, like the accuracy of the information really matters. You're creating like a lot of potentially additional work for them to clarify, well, like, where do my rights apply, you know, to what alerts in what what context, and just, yes. Should we talk about the Thomas dissent?

Oh, yeah. It's, again, a surprisingly reasonable, sensible, correct dissent. Like, I found myself nodding. It was a strange feeling. Justice Thomas has previously embraced a theory of public versus private rights. The specific line he drew is that suits for violations of public rights, rights held by particular individuals but not duties owed broadly to the community, necessarily fall within the core of common law type cases that federal courts can hear. And often these private rights cases will be between private parties,

because, you know, a private party owes an obligation to another private party, you know, usually only because of like a narrow kind of relationship between them. Interestingly, you know, Justice Thomas has floated this theory before, including last year in a concurrence in Thole, another bad standing opinion by Justice Kavanaugh. But in that concurrence in Thole, Justice Thomas was joined by Justice Gorsuch, who I guess like rethought his join or something like he didn't bother to explain like why he thought the Thomas opinion was right before but isn't right now or like why this case isn't a private right whatever neil um and here you know because transunion violated duties owed to particular customers justice thomas would say there's standing again because it's a duty to particular parties rights held by particular

individuals um so as he notes you know were there any doubt that consumer reporting agencies owe these duties to specific individuals and not the larger community? Congress created a cause of action providing that any person who willfully fails to comply with a FICRA requirement with respect to any consumer is liable to that consumer. I think it's actually worth reading a couple of excerpts from the Thomas dissent because they're, you know, just really clear and I think very persuasive. So he calls the majority's approach remarkable in both its novelty and effects. He says, never before has this court declared that legal injury is inherently insufficient to support standing. And never before has this court declared that legislatures are constitutionally precluded

from creating legal rights enforceable in federal court if those rights deviate too far from their common law roots. According to the majority, courts alone have the power to sift and weigh harms to decide whether they merit the federal judiciary's attention. In the name of protecting the separation of powers, this court has relieved the legislature of its power to create and define rights. Go on, Justice Thomas. That is so good. He ends, can I just read the ending? Go on, I'm too long. It's not an Elena Kagan level burn, but it's still very soothing to my soul. The end almost is, actually. So he closes with this. So he says, basically, the majority asks a single rhetorical question. Who could possibly think that a person is harmed when he requests

and is sent an incomplete credit report or is sent a suspicious notice informing him that he may be a designated drug trafficker or terrorist or is not sent anything informing him of how to remove this inaccurate red flag? The answer is, of course, Legion, Congress, the president, the jury, the district court, the Ninth Circuit, and four members of this court. I respectfully dissent. It's pretty fiery. No, you're right. It is. So maybe it is worth just stepping back a second and thinking about the implications of this theory. You know, it could possibly have major implications for the enforcement of a variety of federal statutes, you know, statutes that create privacy harms, which might be difficult to quantify, or might be difficult to identify like a precise common law analog, again, particularly

in a universe in which privacy now encompasses a bunch of data and other more abstract information about us than it did at common law. Another question is, of course, going to be, you know, how close does the common law analog have to be? How about, you know, the old Fair Housing Act case that the court, you know, decided under the previous era of standing in which it held that so-called testers, that is people who didn't actually want to purchase a home but went around soliciting information about buying a home, did have standing to raise a housing discrimination claim in violation of the Fair Housing Act just because they, again, were denied information or given incorrect information that Congress had said they were entitled to. Or how about a company releasing a toxin that creates less than a 50% risk of disease? All of these things, I think, are now kind of called into question

in a way that just hadn't been true before. The other thing I would flag is that nominal damages cases, which the court had basically greenlit in Uzwegbunam versus Przewski, you know, now this case, I think, has a real potential to limit the availability of nominal damages because plaintiffs now have to convince courts not only that their legal rights were violated, but were violated in a way that is sufficiently real or concrete such that judges think they were harmed. Thomas, as we've been saying, wrote the lead dissent. He was joined by Justices Breyer, Sotomayor, and Kagan.

Kagan then also wrote a very short separate dissent, joined by Breyer and Sotomayor. And she, you know, basically seems to agree with Thomas, stakes out maybe just two divergences. One, suggesting that the dividing line may not be the kind of public-private rights distinction, just that the kind of harm needs to be concrete, which might encompass some of what Justice Thomas would call duties broadly shared to the community. But then also seeming not to even go quite as far, Thomas seems to sort of say categorically that Congress can create these rights enforceable in federal court sort of full stop. And she seems to suggest that, yes, courts should give deference to congressional judgments, but that sometimes it might be appropriate for courts to override those judgments to authorize lawsuits. And I'm not sure that Thomas agrees with that. So in some ways, she's saying, I don't go quite as far as the radical leftist Thomas would in this opinion.

But then the other thing is a stylistic point I wanted to make, which is that, you know, it's notable that she and the other liberals are joining Thomas. And so you could imagine her separate writing saying, I joined the very fine dissent of Justice Thomas. And I just add a couple of thoughts in the same way that, you know, remember Kavanaugh in the Lange case we talked about a couple days ago, Roberts, thorough, thoughtful, separate writing. And like she just is not going to do that, right? Like she's voting with him. Like that kind of speaks for itself. But there's no need to kind of gild the lily there or to even kind of draw attention to it, right?

She just writes a couple of separate pages and then she wraps. And anyway, just wanted to flag that. That's, I think, definitely a better way to do it. Yeah, no, it's definitely a better way to do it. And especially when compared to her concurring in the judgment in the Collins versus Yellen case in which she wrote a separate concurrence to say, well, I'm not going to join that crazy shit that Alito wrote even though I agree with his bottom line. You know, this is still a compliment even though it's not over the top and overwrought.

Exactly. Like, that's how Gagan does compliments. Exactly. My presence itself is a blessing. I'm on your opinion. Yes. Two small things. One is, you know, an implication of this case that Justice Thomas noted in a footnote is

that perhaps these cases, even though they cannot be brought in federal court, could be brought in state court, given that state courts are not bound by the same Article 3 justiciability limits as federal courts are. He does, however, note, you know, something of an oddity that this creates state courts as a sole forum for federal law claims. But again, that implication is worth noting. I think it possibly could lead to like parallel litigation in some otherwise, you know, unified class cases where you get defendants, you know, seeking the dismissal of some plaintiffs and then those plaintiffs have to proceed in state court,

but the plaintiffs withstanding can proceed in federal court, you know, good for, I guess, class action defense lawyers, maybe not so good for class plaintiffs. The other thing we wanted to say is shout out to recent strict scrutiny guest, Rachel Biesky, who was cited in the majority opinion. Her article, Constitutional Injury and Tangibility in the William and Mary Law Review, was cited by the majority opinion in TransUnion. She hasn't even started her tenure track law teaching job. So nice work, Rachel.

One quick note about the odds of opinion assignments that this creates. So this was a March sitting case, TransUnion. But there were only six cases in the March sitting and six cases in February, which makes it a little bit harder to guess, you know, who's writing what. But Justice Alito has not written in either March or February yet. The only outstanding February case is Brnovich. The other justices who haven't yet written in February include Justice Kavanaugh, but Justice Kavanaugh has now had six opinions, whereas Justice Alito has only had four. Justice Thomas has had seven opinions. He hasn't written yet in February, And I think that rules him out, right?

Like, why would he get eight opinions and Justice Alito has four or five? Wait a second. So Alito could have both Brnovich and Bonta, the California disclosure case? I was just about to raise that. I hadn't clocked that. Buckle up, my friends.

Now, of course, again, it's possible Justice Kavanaugh gets the Brnovich assignment. It's possible Breyer does. But again, both Kavanaugh and Breyer have six opinions at this point. Justice Alito only has four. I think he needs two more opinions. And again, he hasn't written any opinion in February or March. Brnovich is the only possibility for a case you could write in that sitting. Other remaining opinions include Americans for Prosperity, the California disclosure law case.

So I think it's more likely the chief would keep Americans for Prosperity and he hasn't written an opinion in April. So I'm not as high on the possibility that Alito would have Americans for Prosperity, but I do think the odds of Alito having Brnovich increased. That's really bad. So, okay, well, we will leave TransUnion there.

What should we talk about next? Second opinion is Holly Frontier-Cheyenne Refining versus Renewable Fuels Association. This case involves the Renewable Fuel Standard Program, which requires entities importing or producing gasoline to blend renewable fuels into transportation fuels. The EPA establishes what the mix in the blend has to be, and Congress has created an exemption from these requirements for small refineries. The first exemption it created was a general one that was available to all small refineries through 2011. The second exemption was a case-by-case exemption that allowed a refinery to petition for an extension of that general exemption, quote, at any time.

The full statutory phrase is, a small refinery may at any time petition the administrator for an extension of the exemption under subparagraph A. So the question here was whether the EPA could grant an exemption under that individualized exemption provision after the automatic extension period that lasted through 2011 had expired. That is, do refineries need a continuous exemption to be eligible for an extension? In a 6-3 opinion by Justice Gorsuch, the court said refineries can get individualized exemptions even if the original exemption period had expired. The opinion is 6-3 with all of the women in dissent. It had happened previously under previous compositions of the court that you had a majority of men versus a dissenting group of all women in Utah versus Streef. That was a 5-3 case. Justice Barrett wrote the dissent here. The majority focused on the language,

quote, at any time, saying that basically allows an entity to seek an exemption at any time. The dissent, however, focused more on the common sense meaning of the word extension, as well as the phrase extension of the exemption under, you know, subparagraph A. They both, of course, insist that, you know, the plain meaning of the statute resolves this. So Justice Gorsuch, for his part, invokes, you know, a usage of the word extension that he thinks suggests this. He says, think of the forgetful student who asked for an extension for a term paper after the deadline has passed, the tenant who does the same after overstaying his lease, or parties who negotiate an extension of a contract after its expiration. He also notes

other federal laws that seem to use the phrase extension after an initial period has expired. Justice Barrett, for her part, uses other examples and says one would not normally ask to extend a newspaper subscription long after it expired or request after child number two to extend the parental leave period completed after child number one. So that's a dispute. There's not too much more to say about it except like every single one of these cases is being fought on these artificially circumscribed textualist grounds right now. And it's kind of making my head explode, in particular in the Yellen versus Confederated Tribes of the Chehalis Reservation case, which I think maybe we'll shift to now. So that's the third case that we got today.

And the case is about the proper interpretation of a very recent federal statute, the CARES Act, right, the Coronavirus Aid, Relief, and Economic Security Act, which was passed in the spring of 2020. In that law, Congress provided a lot of coronavirus-related aid, including giving the Treasury Secretary $8 billion in relief funds to disperse to tribal governments. Okay, so the statute defines tribal governments as the recognized governing body of an Indian tribe, as Indian tribe was used in the Indian Self-Determination and Education Assistance Act, which the opinion refers to as ISTA. ISTA defines Indian tribe to mean, and this language is important, any Indian tribe, band, nation, or other organized group or community, including an Alaska Native village or regional or village corporation, as defined in or established

pursuant to the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. Okay, so the Interior Department administers ISDA. Treasury, pursuant to the CARES Act, asked Interior whether Alaska Native Corporations, or ANCs, meet the ISDA definition. Interior said yes, and Treasury then gave the ANCs $500 million in CARES Act funds. So then this challenge arose because a number of federally recognized Indian tribes have challenged the eligibility of these ANCs for these CARES Act funds, essentially arguing that they are not in fact Indian tribes under ISTA and thus are not eligible for CARES Act funds. Here, the court, in an opinion by Justice Sotomayor, joined by the Chief Justice and Justices Breyer, Kavanaugh, Barrett, and Alito, in part, concludes that the ANCs were eligible for these CARES Act funds. Okay, so the court spends some time walking through the unique history and legal framework that surrounds Alaska and its indigenous population.

The big federal statute here is the Alaska Native Claims Settlement Act, or ANSCA, which was passed in 1971, just like a decade or so after Alaska was admitted as a state. So the statute was designed to settle Native land claims, and one of the things it did was to create these ANCs, right, these regional or village corporations that were the ways Congress was going to deliver the benefits of land claim settlements to Alaska Natives. So four years after ANSCA, Congress passes ISDA. ISDA is designed to kind of decentralize federal Indian benefit provision, move it away from the federal government and toward Native American and Alaska Native organizations. Okay, so ISDA allows any

Indian tribe to request that the Secretary of Interior enter into a self-determination contract with a designated tribal organization. An Indian tribe is defined as, maybe I'll read this language one more time because then the opinion goes on to parse it. So any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation, is defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. Okay, so do ANCs fall within the statutory definition, right?

That is really the question. So ANCs are mentioned there. So if the statute just stopped after mentioning ANCs and ANSCA, then I don't think the question really arises. But sort of the issue is the last clause of the statute says, which is recognized as eligible for special programs and services provided by the United States to Indians because of their status as Indians. And the tribes who are challenging the eligibility of the ANCs for these funds argue that this language doesn't apply to ANCs. ANCs are not recognized as eligible for special programs and services. They're not recognized as, and what they sort of say the language here, basically a shorthand for or a term of art for federally recognized. And it is pretty clear that these ANCs have not been recognized by the federal government in this kind of sovereign political

sense of recognition. So Sotomayor decides that the plain meaning of Indian tribe under ISDA does encompass ANC. So again, this is very much styled as an opinion about the plain meaning of statutory language. Basically, the fact that these ANCs are eligible for benefits under ANSCA means that they are under ISDA eligible for the special programs and services provided by the United States to Indians. It would be strange, she says, to list ANCs in this statute and then to exclude them from the final provision of the statute. And she says, even if this reading is wrong, that that kind of ANSCA benefits makes them recognized in the sense of the statute. And she says, even if this reading is wrong, that that kind of ANSCA benefits makes them recognized in the sense of the last part of the statute. The fact that they are separately

listed in an earlier part of the statute means that they are also eligible, even if you ignore the final provision of the statute. Yeah. So that was kind of a weird opinion structure to me. Like, on the one hand, the court says the recognition clause does apply to ANCs. It's just that the recognition clause just means eligible for programs and services provided by the U.S. to Indians because of their status as Indians, including the Alaska Native Claims Settlement Act. But in the alternative, the recognition clause just doesn't apply to ANC's at all. Like it can't be both. So writing an opinion that does both things is a little bit weird to me. Yeah, it's weird in a way that in a brief you can obviously make these mutually inconsistent arguments in the alternative. And sometimes it happens in opinions, but it sometimes works better than other times. And that the tension here was a little odd and definitely

in the dissent, which we will get to Gorsuch notes the tension. Yeah. You would think an opinion would say, this is what the statute means, especially an opinion that purports to be, you know, I'm interpreting the plain meaning of these words. So on the second part, that is when Justice Sotomayor rejects the argument that the recognition clause applies to ANCs, that is on the second ground,

she invokes the recipe book to explain why this could be. She says, consider an example with the same syntax as the Indian tribe definition. A restaurant advertises, quote, 50% off any meat, vegetable, or seafood dish, including ceviche, which is cooked. Say a customer orders ceviche, a Peruvian specialty of raw fish marinated in

citrus juice. Would she expect it to be cooked? No. Would she expect a payful price for it? Again, no. Under the reading recommended by the series qualifier canyon however the speech was a red herring like it's not included at all justice gorsuch responds to this um and says it's a colorful example but one far afield from indian law and the technical statutory definitions before us even taken on its own terms the example is a bit underdone notice the food pun there a reasonable customer might notice some tension in the advertisement, but there are many plausible takeaways. Maybe the restaurant uses heat to cook its ceviche. Maybe the restaurant meant to speak of ceviche as cooked in the sense of, quote, fish cooked by marinating it in an acidic dressing like lime juice. And he cites a Mark Bittman book for this. I hated this. I really did not like this example. a statute dispersing millions of dollars and governmental authority to tribes, natives,

and Alaska native corporations and villages. It's just like, ugh. They increasingly do this in statutory interpretation cases, like, right, choose these completely manufactured examples from completely unrelated domains to try to illustrate the linguistic point that they are making. And you're right, this kind of shearing of context, the language, which is what these examples invariably do, seems like a really problematic move. And even kind of on its own terms, I think for the reasons that Gorsuch identifies, it just doesn't super work in this

example. Like it's, you know, A, like the idea of just like heat cooked ceviche is just like awful and gross. And like, I just wish I hadn't wish I didn't have to think about it when I read this opinion, and I did. But I also think it's right that it is just confusing. And maybe we want to probe a little bit more what the restaurant thought it was doing here, right? Not just like the language itself. What was the purpose of the deal, right? Like that might be helpful. They had a lot of extra product to move.

What kind of product were they trying to move? Did they really, were they long on ceviche or not? And, you know, well, how do they prepare ceviche, right? Like, so of course, they're just like, huh, I guess we'll just never know. We'll just ask, you know, maybe heat cooking, they might lightly poach it. But like, we could find out some of this stuff. Yeah, or like, was the deal offered against the backdrop of like a city crackdown in serving raw or undercooked fish, right? Like, that would also help us figure this out. It'd be really helpful. Yeah, yeah. And the idea that

these cases, again, cases about the dispersal of millions of dollars in federal relief, and all of the significant authority under ISDA, because the court's interpretation of ISDA has implications beyond the CARES Act, and will also confer authority on Alaska Native corporations, you know, to like veto certain like contracts or at least like have authority over like what contracts governments can pursue. And again, the idea that this can be resolved with reference to a hypothetical restaurant deal is just insanity. Yeah, it's almost a little offensive, actually, when you frame it that way.

No, I mean, you know, and they do this all the time. Like, I was remembering this Kagan in Lockhart, a statutory case from like five years ago, I think offers an example that is on its own terms a little bit more successful in that she's explaining why like a final qualifier doesn't invariably qualify the entire list, right? That the series qualifier canon isn't an absolute rule. And she says, imagine you were like, telling a scout, right? You were looking for like a new player for your baseball team, telling your scout to go look for a defensive catcher, a quick-footed shortstop, or a pitcher from last year's world champion Kansas City Royals. And it's like, no, you know, probably you're talking just about the pitcher from last year's team as opposed to also the

catcher or the shortstop, right? And that too was like really divorced from the context of the case, but at least it was a clear example. Like Savicii, I just think is kind of a disaster. But, you know, obviously this case was argued at the end of April, but, you know, my bigger problem is, again, like this case is really hard and I think resolving it turns on thinking about what Congress was doing, addressing, solving, responding to in ISDA and the CARES Act

to figure out what this language actually means. It's not just a vacuous, oh, well, we're effectuating Congress's purpose. It's like, no, really, in order to figure out what this means, we have to think about what was going on and like what they were addressing. So DeMaior on the majority rejects one additional argument, which the Ute tribe had had raised but that the other tribes in the case hadn't supported. And recall, you mentioned this I think when we recapped the case, Leah, that it was the Ute tribes council who won a blind draw to argue the case. So actually the position of most of the federally recognized tribes in this case wasn't even presented in the oral argument. I mean they shared some of the argument but there was not anybody representing the tribes other than the Ute tribe. So Gorsuch dissents.

He's joined by Thomas and Kagan, another unusual alignment in this case. And he says that what he calls the recognition clause, right, that last clause of the statute which Sotomayor had actually referred to as the recognized as eligible clause, right, just another indication of all of the choices, right? So at some point I think we're going to talk about this great Carrie Franklin article about Bostock and sort of the new textualism on the court. But she refers to this idea of like shadow decision points, right? Points at which the court decides what text to emphasize. I would even call this a similar move, right? How you're going to describe a phrase as either the recognition clause or the recognized as

eligible clause really matters, right? So he says recognition, right? And he, I think by that, you know, thinks that it means to replicate recognition like federal recognition of tribes. But of course, the statute doesn't call this part the recognition clause. That's his gloss on it. And so too, Sotomayor calls it the recognized as eligible clause, which again is her formulation, which reveals what she thinks is important. Anyway, so regardless of what we call that part of the statute, he says it definitely does apply to the ANCs, right? There's a list, the qualifier at the end has to apply to all the terms. And since ANCs are not recognized in the sense in which he believes the statute means recognized,

they are therefore not eligible for the CARES Act funds. He sort of, I don't know, maybe I'm overreading this, but he refers to the majority opinion as using a plain meaning approach. And he puts plain meaning in scare quotes. And it almost felt like he was a little bit like offended that she was using the phrase, which he, I think, believes to be, you know, his phrase. Obviously, many justices before him have used it. But there was something, it felt almost like kind of like mocking, but again, maybe I'm overreading it. But either way, he says recognition here, it's a term of art in Indian law, it does mean this kind of government to government recognition. And that does not describe ANCs who

have not been treated as federally recognized for other purposes. Just to echo sort of what you said about what's frustrating about this case, Leah, is, you know, the text just isn't clear, I don't think. I think it is a confusingly worded phrase on which hundreds of millions of dollars rest. And each side claims that their reading is clearly the better one. And it is kind of maddening that we're in this moment in which each side sort of pretends the text is clear. The entire fight is had on that terrain. Each opinion, I think, is relatively persuasive in making its case. But it does seem, like in support of the Gorsuch opinion, that there are lots of very good policy reasons that you might want to give this federal aid to federally recognized tribes and not these big for-profit corporations. It also seems as though Congress created these corporations.

It really likes – it has given all kinds of benefits to these corporations. Maybe it did prefer to disperse these aid funds directly to these corporations rather than to federally recognized tribes. Congress may have wanted to do either of those things. Congress may not have actually been sure which of the two it was doing. But the fact that we can't even entertain those questions or debates, I think is just a huge problem in the way statutory cases are being debated and decided right now. Totally agree. It's like having these fights with like both of your hands tied behind your back, your eyes closed, simply deciding that these are the terms of every statutory case and we're never going to even sort of raise the question of whether we should be looking elsewhere. I think that that's right. But, you know, there are these institutional

incentives for members of the court not to do so because like if they do that, right, they are calling into question like their interpretive bona fides and like whether they are in fact textualists, which like might minimize their credibility and like other statutory interpretation cases like maybe that matters maybe it doesn't but like it's not insane to me that you know they at least think about that so that's all for today um we will get more opinions next week though when they will finish is unclear thanks to our producer melody rowell who has continually been on standby doing these emergency episodes even while the court is not giving us super advanced notice about when they are releasing opinions or when they might finish. Thanks to Eddie Cooper for making our music.

Thanks to Liam Bendixson, our intern for the summer. And we'd like to invite you, our listeners, to submit tips on interesting non-Supreme Court writings and developments to our email address, which is strictscrutinypodcast at gmail.com. As we mentioned when we discussed the Wisconsin statutory interpretation case, that was shared with us by a listener. And we'd love to cover non-Supreme Court developments as well. So please, if there's something interesting, feel free to write in. Thanks as always for listening.