Strict Scrutiny - Coup, But Make It Look Legal

Episode Date: April 25, 2022

Kate's off glamping, so Leah and Melissa are left to their own devices to recap SCOTUS news [1:37], arguments from the first week in the April sitting [27:09], and fresh opinions [54:00]. Plus, a new game: X-Treme Textualism. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts for today. I'm Leah Littman. And I'm Melissa Murray. And today we have some court-related news because it keeps piling up. So we're going to spend some time

covering that. And then we'll also delve into the arguments that the court heard during the first week of April. So FYI, Kate is out because she's glamping. So you know what this means. Leah and I are alone in the studio. So hijinks will ensue. Prepare yourselves. I'm just going to be straight up feral. That's the plan. She's got her feral sweatshirt on. That makes clear that we're not in a world of law. We're in a world of vibes. I actually had some caffeine this morning. So seriously, this could be an issue. Let's do it.

Like, we're going to do the most. Let's do that. All right. Since we recorded the last episode, it's worth noting that even more states have enacted even more abortion bans. So here's some highlights. Florida. Yes, Florida.

Surprise. Kel's surprise. Florida banned abortions after 15 weeks without exceptions for cases of incest, rape, or human trafficking. On brand. Oklahoma. Now, this is actually quite significant because Oklahoma is one of the states that's really been receiving the bulk of the spillover from Texas because there is no legal abortion effectively in Texas.

But Oklahoma just enacted a bill that would prohibit all abortions. Just too sweet. And it's to go into effect at the end of August. Kentucky, not to be outdone, has banned abortion after 15 weeks. And the bill, Kentucky HB3, has other abortion restrictions that would threaten to hand any access to abortion in that state. So what can we make of all of these developments? There's literally a case pending that might overrule Roe versus Wade. And yet, I'm going to eat all these legislative marshmallows right now. I can't even wait for June to overrule Roe, my damn self. So I'm going to do it. Didn't Kate say the last episode, like these might be the last 10 weeks or eight weeks in which

Roe versus Wade is the law of the land? She was optimistic. Exactly. It turns out that was wildly optimistic. Wildly optimistic. They're Turns out that was wildly optimistic. Wildly optimistic. They're pretty confident about what's going to happen. And they're just, you know, preemptively doing the work. Yeah. No longer slouching toward Gilead. Just like sliding, sliding towards Gilead.

Proceeding at lightning speed. Tesla-ing towards Gilead. Okay. All right. So second update, which is we need a complete and total shutdown of SCOTUS clerks serving in Senate caucus was fomenting the coup-adjacent activity leading up to January 6th and attempting to overturn the results of the election. The latest member of this club would be, drumroll please, Mike Lee, senator from Utah and former law clerk to Justice Samuel Alito, and the son of former Solicitor General Rex Lee. So here's a representative text that Mike Lee sent to former White House Chief of Staff Mark Meadows.

I've been calling state legislators for hours today and I'm going to spend hours doing the same tomorrow. I'm trying to figure out a path that I can persuasively defend. It's like, what? He's been calling state legislators for hours today trying to get them to overturn the election. This has like extremely big coup but make it look legal vibes. No, Leah, this is representing the good people of Utah. Like obviously, that's what's happening here. Right. You know, there are also texts from this latest dump in which he's saying things like, just tell me what to say.

Tell me what I should be saying, dear leader. It's so pathetic. I'm going to go back to a text from October of 2020 where Mike Mike Lee evinced some big democracy is for suckers energy. So this is a tweet dated October 8, 2020, about a month before the election, where Mike Lee observed that democracy isn't the objective. Liberty, peace, and prosperity, I think he meant prosperity, are. we want the human condition to flourish. Rank democracy can thwart that. The textualist in me says rank democracy means that democracy is stinky.

That's exactly what I took from that. It smells. I'm just going to say, like, it's a really bad tweet. Like, you know, I don't know how anyone from allegedly the most sophisticated deliberative body in the world old when she was nominated to the district court, struck down the CDC's mask mandate at airports and other public transportation hubs. Mizell is a former law clerk to, wait for it, Justice Clarence Thomas, as well as Chief Judge William Pryor on the 11th Circuit and Judge Greg Katsas on the D.C. Circuit. So, Leah, where to start with this FACACTA decision? You know, in some ways, it's the inevitable result and logical outgrowth of the Supreme Court's cases striking down the CDC's eviction moratorium and the Occupational Safety and Health Administration's vaccine or testing mandate. And yet it also somehow manages to like parody those decisions and highlight their utter

ludicrousness. It's almost as if the court is asking here, why has the CDC all of a sudden been so active? What has been going on in the last two years that has prompted this administrative agency to take all of these steps? It's all very, very suspicious, probably even nefarious, maybe a power grab. Or could it be COVID? What could it be? You're too young for this, but did you ever see that Saturday Night Live sketch, The Church Lady with Dana Carvey?

I've seen clips of it. She's going on like young women walking around with their midriff showing. What could it be? Could it be Satan? That's what this energy, this is the energy here. Like, what is the CDC doing? It's Satan. The CDC. Like, there's nothing reasonable going on here. There's nothing that explains this. It's obviously Satan and a power grab. We're now seven minutes in and we've already gotten to the point that the CDC is Satan. So just just timestamping that here. You know, the district court also, to no surprise, invoked the major questions doctrine. As we said, that doctrine is supposed to stand for something like the following. If a statute

is ambiguous, we'll assume Congress would have explicitly assigned a matter of economic and political significance to an agency. More recently, however, it's become like Republican judges statutory interpretation fanfic. And it means something like agencies can't do things that I, a Republican, think are a very big deal. It's like the independent state legislature theory of statutory interpretation. I love that reference you made, by the way. That was just, it stuck with me all this time. I mean, you know, just like think about

what that doctrine means here. You know, the court is saying that masks on airplanes for a finite period of time are now a major question that is a decision of such deep political significance that an agency can't make it. It's because of freedom, Leah. It's freedom. Freedom is not free. Sometimes you have to fly on a plane and maybe get a virus. I cannot wait to exercise my personal freedom on the next flight I take to bring my dog, pig, horse, and other animals with me to roll down the windows on the plane just a little because I'd like a little breeze in the hair while traveling. And then I'm going to knock on the door of the cockpit and say, I'd like to come in because my freedom. Exactly.

Exactly. Exactly. You know, it's in a lot of ways a decision of deep political significance that I can't go into the cockpit because freedom. Part of what's going on here that I think is so interesting about the major questions doctrine, it's like basically evolved to be the Hermione Granger's beaded purse of doctrines. Do you remember that beaded purse of doctrines. Do you remember that beaded purse? She had books, a tent, all kinds of stuff could fit in this magical purse. That's the major questions doctrine. We can use this for anything. Anything will fit in this. Yeah, just slap that bad boy.

Slap it in. This can fit a bunch more agency regulations in here. It all goes. So the other thing I want to mention about this opinion, which if you've not read it, you really should read it. And if you're a law professor, you should definitely read it. And I think assign it to your students, just sort of like unpack the different moves that are being made analytically, because some of them do not hold together. And one of the ones that I really want to highlight that I don't think holds together really well, is the sort of textualism that is purportedly being done here.

So there's some big textualist energy here, but I'm not sure that this is the textualism that even Justice Gorsuch would co-sign here. So in a key passage, Judge Mizell concludes that because the statute authorizing the CDC only allows the CDC to enact, quote unquote, sanitation measures, the agency is permitted only to enact measures that clean something, not things that keep something clean. And because wearing a mask cleans nothing, the CDC can't impose a mask mandate. That's the reasoning. So I'm going to tell my kids that this is the Windex doctrine because I don't know what else to call it. And the idea that we're using a definition

of sanitation that would have been in vogue in the 1940s when the statute was authorized, but even that doesn't hold water. I mean, a mask can't clean your windows, therefore it can't be mandated in a situation where there's an airborne virus. It's so silly. I mean, a part of me wondered, like if the CDC had required people to drink bleach, would the court have said, well, that cleans something? Clorox cleans. Exactly. I mean, it's like a parody of textualism, as you're suggesting. Like you just put all of the words in the statute in a bag, shake them all up, pick one out, right? Take out a dictionary, play a game of spin the bottle and see, like, which definition of the word the bottle lands on. And it's just entirely divorced from the context of the statute, the problem, the statutory history. I mean, all of this. I mean, under this logic, the CDC couldn't require nurses to wear gloves or masks during surgery since gloves or masks don't clean. They don't clean anything. They just keep things clean. I mean, they couldn't.

Clubs don't clean people. People clean people. I mean, it's just like, you know, they couldn't prohibit workers in the food industry from like spitting in food because not spitting in food doesn't clean anything. It just keeps things clean. It's just so bizarre. I like this extreme textualism. It's funny you call it extreme textualism because I was envisioning we could play a little game of extreme textualism that's extreme starting with an x not extreme okay okay so the way this game works is you look at the words on a page of a statue you take out a dictionary and just like see how things go

poof so let's do this with the Voting Rights Act let's just just start there. Okay, let's go. I'm ready. The Voting Rights Act says, no voting qualification or prerequisite to voting or standard practice or procedure shall be imposed or applied by any state or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on a count of race or color. I see the word practice in that statute. So let me page through the dictionary. Turns out that the word practice means something you do several times in order to get better at it. Therefore, I conclude this statute allows states to do one or two racisms.

It just prohibits them from practicing a lot at it. I think this is extreme textualism, right? And I need to interpret all of the surrounding words in light of practice. I'm gonna stop you here because I think someone could be listening to it, like Jonathan Mitchell, and be like, this is a great idea.

This is the key. And people say we're of no help to Sam Alito, right? We're an equal opportunity podcast. It's a great idea. This is the key. And people say we're of no help to Sam Alito, right? We're an equal opportunity podcast. It's all here. Where was this in his opinion in Brnovich, right? It could have been a lot shorter. Or, you know, let's take a look at the Religious Freedom Restoration Act. This is a statute that our boy Sam likes.

So that statute prohibits the government from, quote, substantially burdening a person's exercise of religion. This says exercise. I located a definition in the dictionary that tells me exercise means to physically exert yourself cardiovascularly. I believe, based on word science, this statute prohibits the government from burdening a person physically exerting their religion, like taking it out for a jog or a swim. Am I doing it right? Well, I was going to say it says prohibits a person's exercise of religion. Would that also, the government would prevent me from getting a membership for my religion at Equinox? Yes, true. I have discovered the true meaning of RFRA. And this obviously means no Peloton for religion.

Yes. Also no Peloton for religion. And definitely no XOXO Cody for religion. Oh my gosh. If that isn't unconstitutional, I don't know what is. That is so unconstitutional. Flagrantly unconstitutional. Very flagrant.

This might be a fun game to play on your own listeners at your next party, play a little extreme textualism. I think this is the game you play in June, where you're sort of rehashing the term that has come and all the opinions that have been announced and you're drinking copiously. And you play this game. Yeah. And I mean, just to underscore, it's not actually that clear how different the district court's opinion was from that because she focused on the word sanitation and then read sanitation into the residual phrase that allowed the agency to take other measures. Also, that statute allows the agency to inspect for illnesses. Inspection doesn't actually clean anything. It keeps things clean. It's preventative. And yet, right,

doesn't matter because textualism. Another big pillar of this decision focused on the Administrative Procedures Act, which we've talked about before, because this was a big issue in past cases, like the DACA case, for example, places where agencies have failed to follow the requisite procedures in promulgating some rule or regulation, and the court has invalidated the rule or regulation for that reason. So here, the court noted that the CDC had failed to follow the required procedures to make this particular rule. And again, agencies have to typically go through a lengthy notice and comment process before

making a rule, but they can avoid that process and impose a rule if they have, quote unquote, good cause for doing so. Here, though, the district court didn't think that there was good cause for issuing this mask mandate in the middle of a global public health crisis without the benefit of notice and comment. And so the court says, the court finding by itself is not sufficient to establish good cause to issue, and this is me paraphrasing, to issue an interim rule rather than to wait until after notice and comment. This is so performative and formalist. Like, I get it.

I know why the mask mandate was necessary. But do the notice and comments. Like, let that be open for like 12 weeks and let people weigh in. And how the Administrative Procedure Act will be perfectly observed. It's like- Even in the pandemic. Right. This is like Death Eaters, but make it law, right? Congress required it by statute. I also want to note, a lot of people are talking about this as though it were a nationwide injunction. I don't know that it is, but I think what she actually does is remand it back to the CDC to go through the appropriate procedures. But this does have nationwide effect, this single decision from a

judge in the Middle District of Florida in the manner of a nationwide injunction, which is interesting, because I remember back in the travel ban days when a Washington district court judge issued a nationwide injunction and joining the travel ban, a lot of conservatives had big, I hate nationwide injunctions energy. And I heard nary a peep about this when this decision was issued. All right, moving on. I just, I can't. I mean, I just continue. I'm still wearing a mask. Proceed. Obviously same. So the execution by firing squad might be starting back again in South Carolina. So Richard Bernard Moore, a 57-year-old Black man who has been sentenced to die in South Carolina, has reportedly elected to die by the firing squad. Elected?

Right. So South Carolina gives people the, quote, choice between the electric chair or the firing squad because the state doesn't have the drugs to administer lethal injections. So this execution is scheduled for April 29th, and his lawyers are challenging it. The South Carolina Supreme Court entered a temporary stay on Wednesday. But this could change before this episode airs. So we are taping this on Thursday, April 21st. Anything could happen. South Carolina had signed a law in 2021 making the electric chair the default execution method

as pharmaceutical companies stop making the electric chair the default execution method as pharmaceutical companies stop making the drugs used in lethal injections. And they also announced that they had made over $50,000 in renovations to the execution chamber, which included a new firing squad chair where people will have to sit while they are being riddled with bullets. So state investment at its finest. Yeah, so this removes some of the veneer of bloodlessness from the death penalty and capital punishment. But you know, as with other things we've discussed, like corruption kind of out in the open or conflicts of interest out in the open or racism out in the open it's just not clear if that will matter um so i'm still back on we're using the firing squad i

know i know the firing squad one additional piece of news we wanted to know before we get into argument recaps which is a three-judge district court allowed Ohio Republicans to proceed with their preferred legislative districting map. The Ohio Supreme Court had repeatedly invalidated the proposed maps as partisan gerrymanders, that is maps that sought to disadvantage Democrats and advantage Republicans in violation of state law. Now, the three-judge panel of federal judges, two Republican appointees in the majority over a dissent by a judge nominated by a Democratic president, have said there's not enough time to draw new maps before the state's primary, and so the state has

to use the commission's map that has repeatedly been struck down. The court basically said they, the federal court, had to use the existing maps as the ones to be put in place because the court had to presume good faith on the part of the legislators, which is super odd given that the Ohio Supreme Court has basically found repeatedly that the commission drawing these maps has violated state law. And this decision is basically an incentive for legislatures and commissions to keep violating state law and get into a cycle of drawing maps and having them struck down and reviewed in state court because they can just run out the clock. And then a federal court will allow them to adopt their illegal maps.

Here in this case, the court stayed its decision until May 28th, ostensibly giving the state a chance to enact another map. But why would the Republicans do that when they like their nice illegal map that the court just said they can use? And it's just another example, I think, of the court kind of dismantling the other mechanisms that were supposed to prevent partisan gerrymandering. And providing incentives to Republican legislatures to just be as extreme as possible and just like engage in brinksmanship. Yes. Because one of the conceits of the Supreme Court's decision saying that federal courts couldn't remedy partisan gerrymanders was to say, well, state courts can do that. You know, insert Katherine Hahn winking face here.

Sliding toward Gilead, slouching toward autocracy. Let's get into the argument recaps. So in April, we had a couple of arguments. Some of the bigger ones are still in the offing, but we wanted to highlight some of these because we talked a little bit about them in our last episode. So the first one I want to highlight is George versus McDonough. So this is a case that we mentioned in our preview episode last week. It's an important veterans benefits case that was argued by Mel Bostwick, a partner at the

law firm Oreck. As we said, the issue in the case is how veterans can challenge the Department of Veterans Affairs denial of a veteran's claim for benefits. By statute, a veteran generally cannot challenge a final denial of benefits unless the final decision is based on clear and unmistakable error. The question here is whether a clear and unmistakable error. The question here is whether a clear and unmistakable error includes situations where the VA misinterpreted a federal statute governing veterans' benefits. That is, the VA denied a veteran's claims for benefits

by relying on a mistake, an error, about what the relevant statute means. So does that qualify as a clear and unmistakable error that the veteran can invoke to challenge the VA's decision? That was the big question. And it was really unclear, I think, how the court was leaning on this question. Like hard to sort of read the tea leaves on this. But I will say it was not hard to see how incredibly well prepared and fantastic Mel Bostwick was. So great to see her in action. And we will be watching to

see what happens at the court on this important question. Another case that the court heard this past week that we had previewed was Vega versus Tecko. So this is the case about Miranda warnings, the warnings that police officers are supposed to read to you before interrogating you while you're in custody. These warnings include you have the right to remain silent, you have the right to a lawyer if you cannot afford one, and so on. And the question here is whether you can sue police officers who interrogated you while you were in custody but didn't read you your Miranda warnings, and then those statements were introduced at your trial where you were acquitted. So it's whether you can sue those police officers. So Section 1983 is a civil rights statute that

allows you to sue state and local officers who violate your constitutional rights. And as we suggested last time, you might be thinking, wait, if the Constitution requires the police to read me my Miranda warnings, but they didn't, isn't it obvious that I can sue those officers for violating the Constitution? Well, gentle listener, open question. So there are basically three things happening in this case, some of which are just theories being advanced for why the plaintiff cannot sue. But they're all worth thinking about here and are really helpful in sort of getting at the heart of this case. So the first issue is, what exactly is the Miranda

right? Is it a right to be warned when you're being interrogated and in custody? Or is it a right not to have unwarned statements introduced at trial? Or is it a right not to be convicted at a trial where unwarned statements were introduced? The second issue is also a kind of causation question. The officer argues here that this failure to Mirandaize the individual cannot violate a constitutional right because it's the prosecutor who actually puts the evidence in at trial, and that the violation occurs when the statement is introduced at trial, not when the rights were failed to be given or the statements were failed to be read to the individual.

But note, that could be true whenever we're talking about fabricated evidence or coerced confessions. And so this causation argument would seem to imperil a lot of Section 1983 litigation challenging police misconduct, not just that involving Miranda. And maybe that's kind of the point. We can undo Miranda and also start dismantling Section 1983. And everything else, too. No law, just vibes. Continue. And then there's a third thing that I want to highlight. This court hates Miranda almost as much as it hates Roe. It definitely has most of the hate for Roe, but Miranda is a close second here. And so that sometimes means that they make up these ad hoc rules about how there are special rules governing civil litigation on Miranda claims that differ from other analogous constitutional claims. And this came up repeatedly and explicitly at oral argument. So Justice Kavanaugh likened Miranda to Bivens, basically

saying that any extension of or perhaps even a fair application of Miranda isn't favored, that the Miranda right is strictly limited to the facts of that case. Here's a little clip of Justice Kavanaugh doing his worst. of Miranda and Dickerson, it seems that the other side's position is accept it, but don't extend it. If I could boil it down, accept it, but don't extend it. And we've done that with other presidents of that era, even like Bivens. We accept that we haven't declined to extend it. We've declined to extend it. And then they argue, I think, that this seems like an extension of Miranda and Dickerson to a new context, 1983 suits, that it is not previously extended to. So why isn't that the right way to think about that case? Where would you get off on that analysis? The reason why I like this clip is,

in some ways, it is the encapsulation of no law, just vibes. He's saying it doesn't actually matter whether this distinction we're going to draw with this prior case is a reasonable one, or whether a fair or better reading of the decision would mean it applies in these circumstances. It's just any distinction will do because we just don't like that earlier decision. And I think understanding that that's what's happening in these cases can really help people understand them better because sometimes, particularly students, will focus on the distinction that the court is making and they'll be like, but this distinction doesn't make any sense. And it's like, yes, you're correct. And

they don't think it has to. They just think they need to identify any distinction. Like, well, that was decided on a Tuesday in 1963. And today is a Wednesday in 2022. So different. If you're interested in sort of the entire trajectory of what the court has done to essentially hobble and dismantle Miranda, Chuck Weisselberg at the University of California, Berkeley has written a series of articles about Miranda. And they're like, I mean,

they all just sort of lay out the entire trajectory. And if you want a really good primer on it, they're excellent. So take a look at those. Okay, so what happened at the argument? As you said, one piece of the issue in this case is, well, look, if the Constitution requires Miranda warnings, why can't you sue under the statute that says you can sue for any deprivation of a right secured by the Constitution? The petitioner, the officer here, is pressing the theory that Miranda isn't really a constitutional rule. Sometimes this idea gets cast as Miranda is a prophylactic rule, something that exists like outside of the Constitution.

Miranda is a vibe. It's a vibe. Miranda is the ultimate vibe of court. You know, but other times the objection to Miranda is, well, where is that in the text or history of the Constitution? And so kind of like Roe, bodily autonomy, also a vibe, except for vaccines, then definitely a law. Exactly. But the problem with this idea that Miranda is a vibe, not a law, is the Supreme Court's previous decision in Dickerson v. United States. In that case, Congress had passed a statute that said courts didn't have to exclude statements that were made without Miranda warnings. And the Supreme Court in Dickerson said, no, Miranda requires you to exclude unwarned statements at trial,

and Congress can't change that rule with this statute. And the only way, the only basis the court could say that would be if the Constitution required Miranda as a baseline for admitting statements, because if Miranda isn't required by the Constitution, then Congress could set the rules regarding confessions itself. But because Miranda is a constitutional rule, they cannot. Okay, that was a long explanation. So Dickerson is somewhat famously written by former Chief Justice Rehnquist, who before the decision in Dickerson was a critic of Miranda and had called it prophylactic and not constitutional. During the oral argument in Teco, there was this interesting summary about

that fact from Justice Kagan. And this is a long clip, but we're going to play it because I think it's interesting and maybe also not entirely or only about this case. So here it goes. Mr. Martinez, you mentioned before Chief Justice Rehnquist's journey in these cases. I just want to talk a little bit about that. I appreciate that you think that your position does not undermine or isn't consistent with Dickerson. But I kind of want to assume that that's not true, or at least have you assume of want to assume that that's not true, or at least have you assume that people could think that it was not true.

And, um, and... Sorry, to assume that it was zigzagging? That it does. That if we come out your way, it will undermine Dickerson. It will be understood as inconsistent with Dickerson. I mean, that's what I think. And I know you don't think it. But I want to put that aside and and and to have you

at least acknowledge that there are many people who will think that of this as utterly inconsistent with Dickerson. And I just want to have your reaction to what Dickerson was all about and what it said about the court as an institution, in part through the lens of Chief Justice Rehnquist's progress through these cases. Because, you know, I think what people think about Dickerson is that essentially the Chief Justice understood that Miranda had come to mean something extremely important in the way people understood the law and the way people understood the Constitution and that whatever he might have thought about the original basis of Miranda, that it was sort of central to people's understanding of the law and that if you overturned it or undermined it or denigrated it, it would be, you know,

it would have a kind of unsettling effect, not only on people's understanding of the criminal justice system, but on people's understanding of the court itself and the legitimacy of the court and the way the court operates and the way the court sticks to what it says. You know, not just in a kind of technical stare decisis sense, but in a more profound sense about the court as an institution and the role it plays in society. So I guess I just, that might be above your pay grade, and I'm sorry if it is, but if you would just react to that. So May thinks she's not just talking about Miranda, but other kind of vibey rights that the court does not seem willing to acknowledge or recognize and protect. It's fascinating.

Like, it's a long exegesis about a justice's journey on a constitutional issue they have criticized before. She suggests the justice changed their views partially because of or on the basis of institutional legitimacy, and also understanding that the decision had been accepted and was understood to be part of the fabric of American law and society. Almost like reliance. Right. And a very, I think, particular kind of reliance that this – It had become part of culture. Yes, exactly. The culture point is so fascinating because when Justice Rehnquist announced the opinion in Dickerson, back when opinion announcements were a thing, the members of the court would sit up on the bench and a justice would read a summary of the decision. When he said and was explaining how integral Miranda had become to our society, Chief Justice Rehnquist said that Miranda warnings had appeared on television.

So let's play that clip here. You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to the presence of an attorney. If you cannot afford an attorney, one will be provided for you prior to any questioning, if you so desire. These four warnings have echoed through police stations and on television screens in the 34 years since we decided the case of Miranda v. Arizona.

You know, that reasoning wasn't a part of the opinion, but I think it's just a fascinating window into, you know, the court's relationship to culture, culture's influence on the court, and, you know, the kind of considerations that sometimes drive judicial decision making. I also want to add one thing. I think it was relevant that she highlighted and kept talking about Chief Justice Rehnquist. I mean, who could be more of a stalwart conservative than Rehnquist? And even he recognized the institutional importance of maintaining fidelity to past precedents,

even if he didn't like them. And I thought that was, again, an important point and perhaps a nod to the Chief Justice, the current Chief Justice, Chino, Chief Justice in name only. Because we don't even know what's going on in the background around the writing of the Dobbs opinion, and they're communicating things to each other. And so maybe this is remember, and, you know, Roberts clerked for Rehnquist, like maybe all of this is deeply significant, or maybe it's nothing. In any event, Justice Barrett also picked up on this thread. But I almost think she was not pulling on this thread to underscore the institutionalist implications,

but rather, it felt a little bit like she was trolling and pushing back. So let's play that clip. Mr. Martinez, I want to present something to you and see if it's consistent with your understanding. I think Justice Kagan makes some good points, and there are points made by your friend on the other side about your position being inconsistent with Dickerson. But I wonder whether this is a way that you would agree with characterizing it. You correct me if you think my view of this is wrong, Leah, but I felt like she was adopting the most limited and crabbed view of Dickerson possible, like essentially acknowledging a right,

but saying that Dickerson doesn't define the scope of the right. It's just, I mean, it's vibey, basically, is what, like, there's no law there. Yeah. I mean, I also took this to be an effort to, like, push back at what Justice Kagan was saying. And it was a little bit hard for me to know, like, in what register it was said. If my theory is correct, and Kagan is talking to the chief about something else, like another case, here comes Justice Barrett. Like, no. Like, here's what the law is.

Remember your commitments. Yep. Another major theme here was the issue of causation. So there's a concern here that there are lots of constitutional violations that occur pretrial. So, for example, coerced confessions, fabricated evidence. And if you can't sue the police in those circumstances, that would be a sweeping change to civil rights litigation. But because you can't sue prosecutors, prosecutors are immune from suits and you can't sue witnesses. If you can't sue the officers, you really can't sue anyone. So this whole question of causation and the officers' efforts to shift a lot of the causation

to the prosecutors is essentially like, there's no one here to sue at all. If you can't sue us because the prosecutors caused this, and you can't sue the prosecutors regardless of whether they caused this, you can't sue anyone. You have no relief here. And Justice Breyer, our resident pragmatist, mensch on the bench, zeroed in on what those practical consequences would look like. So let's hear a clip of him. But still, what is your...

Suppose I think hypothetically that when an improperly obtained confession is introduced into the trial, the person who does it is the prosecutor. And he has immunity. And he is the superseding cause of however this bad thing happened to occur. Unless the policeman's there. And then he has immunity because he's a witness. Not to be outdone by Justice Breyer's pragmatism,

Justice Gorsuch jumped on this and seemed very wary of adopting a big causation argument, like the version that would say, even if it's the police who violate your rights, when the prosecutor introduces that evidence at trial, that breaks the chain of causation. As he recognized, that would really take a bite out of civil rights litigation. So when Justice Gorsuch said he wasn't entirely into a far-reaching causation argument, the assistant to the Solicitor General who appeared on behalf of the Biden administration pressed a this would be the rule for Miranda claims only kind of notion. And there's a chance that that's the route the court will actually take here to say that the chain of causation is broken

only for Miranda claims when the prosecutors introduce introduced at trial was saying, well, I actually don't think the chain of causation was broken because, you know, the police officer lied about whether the statements were Mirandized and therefore the chain of causation wasn't broken because it's all attributable to the police officer. And the court and the officer were pushing back on that argument by noting that it hadn't been raised below. But then Paul Hoffman, who was representing the plaintiff, Mr. Tecko, was like, well, of course it wasn't raised below because we weren't discussing proximate causation below. Like this only came up at the Supreme Court stage. So let's play that clip here.

They could have asked for a superseding clause instruction. They could have made arguments about proximate causation. They never did. So that's why we're making it here, which doesn't make any sense. But, you know, the court granted certs, so we're here. We tried to say that you shouldn't do it, but what can we say? I just really loved this energy. I'm sorry you all are so eager to take these Miranda cases that aren't actually developed below, and then these people just start launching into these theories that haven't been evaluated or pressed below. But it's not my fault that you're introducing new issues into the case. One final note on the case, you know, you mentioned that the assistant to the Solicitor General was pressing this notion that while the chain of causation might only be broken when we're talking about prosecutor introducing un-Mirandai statements, you know,

the assistant to the Solicitor General also suggested that another way to rule for the officer here would just be to consider the purposes and nature of Miranda and say it's not necessary to enforce Miranda through civil litigation because we can just do so at trial. This is like a very vibey thing, right? Just sit back and ask, like, is this necessary, right? Would this do the trick? Why is the Biden administration pressing this position? You know, I don't know. Because as the lawyer for the plaintiff and the briefing suggested, it's not like there are a ton of Section 1983 Miranda claims. So there isn't a reasonable prospect of while ruling for the plaintiff would generate all of these floodgates of new cases. So I'm not

sure. Again, it was one of the questions I had listening to the oral argument that it just it didn't seem quite on brand. But you know, what do I know? Anyway, should we talk about some of the fun moments that happened in this week's oral arguments? Yeah. Okay. We didn't preview some of these cases in depth, and we're not going to recap them in depth, but we did want to highlight some really light and fun-ish moments from oral arguments. One of these fun-ish moments occurred in Kemp v. United States,

which involves a question about Rule 60B motions in federal criminal cases. So just as a primer, Rule 60B allows a party to seek relief from a judgment or order, i.e. to undo a decision of the court in certain limited circumstances. So under Rule 60B1, one of those circumstances is when there was a mistake. However, under Rule 60B6, which is a catch-all provision, the parties may also obtain relief for any other reason that justifies relief. The question here is whether a mistake of law, so a legal error, qualifies as a mistake under 60B1 or whether it could be characterized as some other reason that might justify relief under 60B6.

So why does it matter if both provisions provide relief from a judgment or order? The reason is because there's a one-year deadline to file a Rule 60B motion under B1, whereas filing it under B6 has no firm deadline. In this case, the district court's error was it dismissed Mr. Kemp's post-conviction motion as untimely, i.e. as filed too late. But everyone agrees that was mistaken. The court committed a legal error about when the deadline actually was. And the issue is whether the mistake should be classified as a 60B1 error or a 60B6 error, and the latter would be more advantageous for the petitioner and others seeking relief.

In the course of the argument, though, Mr. Kemp's lawyer, Andrew Adler, criticized an opinion by a Court of Appeals judge who is very well known. This judge is Judge Henry Friendly of the Second Circuit. And one of the reasons Judge Friendly is so well known is because many of the people who clerked for him have gone on to greater things, including, wait for it, Chief Justice John G. Roberts. So let's play this clip of Adler taking a swing at Judge Friendly. Not really a swing. He was very careful not to criticize him. But he did say that his opinion was wrong, wrong, wrong. So, you know, I don't want to say anything disparaging about Judge Friendly,

but I think that opinion was wrong. And I think it was for a good reason that he didn't criticize him because here was the chief justice's response. And it's not surprising that Judge Friendly may not be very familiar with mistakes of law. You know, I like this because I feel like it calls back to Justice Kagan's statement in Techo, you know, her invoking Chief Justice Roberts' former boss, Chief Justice Rehnquist. And here, you know, the chief justice kind of stepped up to defend his other former boss, Judge Henry Friendly. You mentioned that a lot of Judge Friendly's clerks have gone on to become well-known. You know, some of his other former law clerks include Attorney General Merrick Garland, Judge Michael Boudin of the First Circuit, Judge Randolph of the D.C. Circuit, and many others. The court also heard United States v. Washington, which involves a challenge to a Washington law that taxes federal contract workers as part of the state's workers' compensation scheme.

Generally, states cannot tax or regulate property or operations of the federal government, but Congress can, by statute, allow them to do so. And here, there's a 1936 federal law that authorizes state workers' compensation authorities to apply state workers' compensation laws to all land and premises in the state which the federal government owns or holds, and to all projects, buildings, constructions, improvements, and property belonging to the federal government in the same way and to the same extent as if the property belonged to the states. So the case here actually involves workers at a site that was part of the Manhattan Project, the federal government's efforts to develop nuclear weapons. Workers at a

nuclear facility were exposed to radioactivity and toxins. And the question is whether the federal government must pay contractors' claims under Washington's modified workers' compensation law. Washington modified the law to make it easier to prove causation, such that workplace conditions actually caused your injury or illness, and so you can recover under the workers' compensation scheme. And Washington specifically changed the standard for workers at that nuclear facility. So there's a question about whether Washington is singling out federal contractors or treating them in the same way and to the same extent as if the property were the states. Five bucks that this becomes a case about Washington's animus to nuclear power. Oh, goodness. Oh, goodness. All right. Two other small highlights from the argument. The chief was really punchy on this day. So here's a little clip of the chief justice who was having some fun.

But as to your other question, Your Honor, my apologies. Your other question was about the state. Don't expect me to remember. When the state legislature acts here or about the retroactive application. And then not to be outdone, Justice Breyer posed a hypothetical on muskrats. I would be willing to bet that there isn't clear law on the geographical scope of muskrat nests in the state of Washington. So when I read that, I thought, I don't know. And therefore I couldn't now. That's my problem. One reason I had to single this out is I kept thinking of the muskrat dance song, which is like forever imprinted in my mind because of how it appears in the movie My Fellow

Americans, where Dan Aykroyd's character just like reads the lines to this song. He's like, you know, muskrat Susie, muskrat Sam, do the jitterbug out in the muskrat land and they shimmy. Sam is so skinny. Anyways, it's I can't help but hear that. Okay. Whenever I hear muskrats, I think about that opinion on the prohibition on advisory opinions. Have you ever taught that? Yeah, yeah. So that's what I think of. But yeah, that's – Dan Aykroyd also works.

Kate Shaw is somewhere glamping like, I'm glad that I'm hiking some enormous canyon right now and not in there with these two lunatics. So as Melissa said, we are recording on Thursday. Basically, while we were recording, the court started releasing opinions in order to make it maximally inconvenient for us. So we're not going to be able to dive in depth. But we weren't thrown, Leah. We were multitasking the whole time. So we actually can tell you all about these opinions in a very high level surface vibey way. So here we go with some quick and dirty. Quick and dirty. It's on the opinions that we got. So the court released the opinion in United States versus Valle Madero. This is the case about whether Congress can exclude Puerto Rico from supplemental social security income benefits under the SSI program.

Kate did a special episode about this case, going into it in depth. Here, the court, in an 8-1 opinion by Justice Kavanaugh, held that Congress can constitutionally exclude Puerto Rico from this benefit program. Who was the lone dissenter? Justice Sotomayor dissented. As a result of this decision, that will mean, I think, something like $2 billion a year in aid doesn't go to Puerto Rico. Can I note a concurrence here? Oh, yeah. So there's a really interesting concurrence.

I actually find it interesting because it seems like roles are shifting at the court. So typically, when we'd have one of these opinions, it would be left to Justice Thomas to join the judgment, but separately concur to say, I would have gone further and completely dismantled the underlying thing that we didn't touch here. I would have gone further. Here, though, it is Justice Gorsuch who has filed a separate concurrence saying that he would have gone beyond this question of the supplemental Social Security benefits and just overrule the entire set of Insular cases if the parties had asked them to do so. So this is an invitation to some group, some litigant somewhere, to bring a petition to overrule the insular cases to the court because

he is ready. And Justice Thomas also separately concurred, emphasizing that there are no equal protection principles that bind the federal government's guarantee of due process. So that's also pretty important. I mean, this would be huge. What Justice Thomas is saying is equal protection principles don't apply to the federal government, i.e. the principles that say you can't discriminate on the basis of race or sex. This would essentially overrule Bowling v. Sharp and all of those decisions that essentially read an implied equal protection guarantee into the Fifth Amendment's due process clause. Yeah. Bowling v. Sharp is the decision that prohibited segregated schools in District of Columbia. And the court reached that conclusion by saying the equal protection principles apply to the federal government by virtue of the Fifth Amendment due process clause.

And Justice Thomas is saying, no, they don't. Note that this would, I think, also raise questions about Korematsu versus the United States. Because if there are no equal protection principles that bind the federal government, then what is to stop the federal government from interning citizens on the basis of race,ation, illegitimacy, all the things. So again, these two together, these lone opinions, I would go further and literally do the most. Yes. And hopefully in a future episode, we will have time to go back and say more about this. But again, we at a minimum wanted to note this. We also received the court's opinion in Brown v. Davenport. This is a federal habeas case about when a federal court can to both conclude that the habeas petitioner slash state court defendant has established a substantial an unreasonable application of the court's harmless

error cases. And that inquiry is by virtue of the federal statute that Congress enacted restricting the availability of post-conviction relief. This opinion is 6-3. Justice Gorsuch wrote the opinion. Justice Kagan wrote the dissent. She was joined by Justice Breyer and Justice Sotomayor. I think one important thing about this decision is it, of course, further narrows and restricts the availability of post-conviction relief for state court prisoners. This has been kind of a trend in the decisions of this court, and Justice Gorsuch has been an avid proponent of this in particular, again, only had time for like some quick skims of the different opinions. But Justice Kagan's opinion

accuses the court of overruling or giving short shrift to some previous decisions of the Supreme Court, including one written by Justice Scalia. And in that dissent, in which she accuses the majority of, again, undermining a decision written by Justice Scalia, she referred to Scalia as the greatest wordsmith in modern Supreme Court history, basically saying, like, look, he wrote this opinion very precisely, and you're ignoring what he did. And I think this is very much part of, you know, her approach on this court, you know, being clear that, like, I'm a textualist, I get textualism. And like, that's the way to try to reach her colleagues on the other side. And can I just say a Justice Kagan takedown of Neil Gorsuch on habeas is what dreams are made of over here. I'll just give you two brief excerpts. So one, she says, because the majority begins with some law chambers history, I do too, though fair warning,

my discussion is no more relevant than the majority's to the issue before us. She also says, neither of the parties to this small and legally mundane case thought it a suitable occasion for a from Blackstone onward theory of habeas practice. It's just incredible. She murders him a thousand times over, including in this footnote where she says a forthcoming article makes much the same point in addressing the concurrence that anticipated today's historical musings. Burn, girl, I love it. But the decision is, again, significant because it adopts a very specific view about habeas, which is it is slash should only be available when there's like a fundamental process defect in the state court proceedings. And it's a view that Justice Gorsuch has been pressing for a while. And it seems like the court is heading in that direction.

OK, some other decisions. We received an opinion in Beckler v. Commission of Internal Revenue. That opinion for the court was by Justice Barrett, and it was unanimous. It held that a off-premises signs which cannot be digitized is a facially unconstitutional content-based regulation under the court's ruling in Reed v. Town of Gilbert. Here, the court, in a 6-3 decision written by Justice Sotomayor, in which she was joined by Chief Justice Roberts, Justices Breyer, Kagan, and Kavanaugh, so weird lineup, concluded that, in fact, this was facially content neutral under the First Amendment. Interestingly, perhaps unsurprisingly, Justice Thomas filed a dissenting opinion in which Justices Gorsuch and Barrett joined. I think this opinion is interesting in part because of the lineup you suggested, but also because I read it to be this new majority of the court taking a step back from the court's

extremely formalist and potentially expansive version of the First taking a step back from the court's extremely formalist and potentially expansive version of the First Amendment in which... For speech. Right, for speech, in which the court had previously suggested that if you had to read a sign in order to determine whether the sign was subject to a given rule. That meant the rule or regulation was presumptively unconstitutional under the court's precedent because it was based on content. And here the court is saying, you know, no, right? The rule that says if you have to read a sign in order to figure out whether it violates

a rule or regulation, that's just too extreme of a definition of content-based. In some ways, that's a welcome development because the court's previous decisions that had adopted that. If you have to read a sign to figure out whether it violates a rule, that means the rule's content-based is just way too expansive and formalist for my taste. We received one last opinion, Kasser versus Thyssen-Bornemisza Collection Foundation. So that case is about the proper interpretation of the Foreign Sovereign Amusenese Act. We have not yet had time to simultaneously go into depth in that case. So, you know, it's possible we'll do so in a future

episode. But again, this is happening as we're recording. That was one of those Holocaust reclamation cases. Yes. And here it involved like a choice of law issue about like what law applies state or federal to a particular question. This is a relatively upbeat episode, Leah. We haven't completely descended into the depths of pessimism, even without our resident optimists. That's true. We haven't. I mean, City of Austin versus Regan National Advertising, that was a welcome development. So maybe that kind of helped the episode. I mean, if nothing else, we can make billboards. We can't control our bodies, but we can make billboards for ourselves. It has that going for it. I like this. I like this for us.

Yeah. Maybe we should try to take the end of every episode and say, what are the things we still can do? A gratitude journal. A gratitude journal. Exactly. A gratitude journal. Here are the things that ladies can do. Still do. I'm grateful as a lady to be able to have a billboard that I construct and have the message that I created myself. Yes, exactly. My billboard, my choice. That's our new t-shirt.

Yeah, there we go. My billboard, my choice. I love this for us. Okay. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Kate Shaw, and me, Melissa Murray. It is produced and edited by Melody Rowell with audio engineering by Kyle Seglin,

music by Eddie Cooper, and production support from Michael Martinez, Sandy Gerard, and Ari Schwartz. And digital support from Amelia Montooth. Thanks for listening.