Strict Scrutiny - Dear Steve

Episode Date: March 22, 2021

Melissa, Kate, and Leah preview the March sitting and have a romp through court culture — cancel culture, the monarchy, media bias, and so much more! Follow us on Instagram, Twitter, Threads, and Bluesky

As we were putting this episode of Strict Scrutiny together, the Atlanta shooting occurred. We want to extend our deepest condolences and support to the families and friends of those who were killed on that day. On this podcast, we have always tried to highlight the way in which law impacts the lives of underrepresented and marginalized communities. And with that in mind, we condemn the violence that has been directed at marginalized communities, including the AAPI community, and we stand in solidarity with those communities in seeking justice. 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. or for our next. Welcome back to Strict Scrutiny. We're your hosts. I'm Melissa Murray. I'm Leah Littman.

And I'm Kate Shaw. And today we have a jam-packed episode for you with news, previews, and court culture. And I am so excited to be back with you guys. You guys have been going it alone without me in the last couple of weeks, and I've really been missing it and feeling a little lonely here on the sidelines. Well, the time difference has been making it actually a little hard to get things to align with you still on the West Coast. We miss you out here.

I know. West Coast, best coast. What can I say? But I'm sorry that it's making it so hard. But I'm really psyched about the episode that's going to drop with our boy, strict scrutiny, super fan, Sheldon Whiteboard Whitehouse. So I'm excited to dig into that when I download it. Spoiler alert. Senator Whitehouse is making a return to the podcast. We will air that episode after the March sitting. Yeah, so I won't be on that episode. So I'll be listening

with everyone else. And I'm so excited because he's bringing the fire. I love it. And I think we also have a good episode in store for you today, including a piece of court culture that I know you are super stoked to talk about. I'm so excited to talk about this piece of court culture that I know you are super stoked to talk about. I'm so excited to talk about this aspect of court culture, legal culture more generally. So let's just get right into it. Let's do that breaking news. Leah, we have an opinion from the court. We do.

We got the Supreme Court's opinion in a case we previewed, Uzwegbunam v. Przewski, the case about nominal damages. Specifically, it was about whether a claim for nominal damages suffices to give a plaintiff standing and allow a case to continue. Nominal damages, just as a refresher, means a small amount of money, like $1, that wouldn't necessarily compensate someone for any or all of the often intangible injuries that they suffer. Here, the plaintiff was denied the ability to speak and distribute pamphlets about his religion, and the question was whether the claim for nominal damages gave him standing when that was all he was asking for in the case. The case had originally also included a claim for injunctive relief, but the school then changed the policy that the plaintiff had originally sought to enjoin,

and so that was no longer part of the case. This opinion was by Justice Thomas. It was heavily reliant on the permissibility of nominal damages at common law and importing that history into Article 3. The opinion was 8-1. And the dissenting justice was the chief justice. And this was actually his first solo dissent. And writing only for himself, he was able to let his freak flag fly. And it is full of chiefy lines like, the court sees no problem with turning judges into advice colonists. Okay, stop right there. Like, leaving aside the implications for the justiciability doctrines,

how amazing would it be if Supreme Court justices were advice colonists? Think about it. Dear Justice Breyer, I'm having a dinner party. Do you have any ideas for pot roast to discuss? And then Gorsuch would jump in and be like, no, no, no, but I have a steak recipe. The chief is going to chief, and he definitely chiefed on this one. But I also think it's a really interesting opinion. Justice Thomas is really having a lot of common law moments. Another place where I think the common law came in, although not in the same way as in this opinion, was in his concurrence and gamble from two terms ago when he talked about

precedent and when you should follow precedent. And again, he made this very firm distinction between Article III courts on the one hand and common law courts, which he said had more room to just sort of let precedent develop. But Article III courts really had to stop bad precedents in their tracks. So he uses the common law for lots of different things and not always consistently. Definitely. And that's, you know, the chief was, I think, really impatient with some of the court's wholesale importation of these 18th century English decisions. And it actually reminded me of a theme that we have heard emerge in a couple of Fourth Amendment cases this term, just sort of the relevance of that founding era and pre-founding history. So we'll see how that cashes out into the opinions in those cases. But this kind of snark made me think the chief is sort of fed up with this kind of wholesale adoption of those

common law principles in a number of areas of law. But you know, snark aside, the chief actually did seem pretty worked up about this kind of alarmist at points in the opinion, right? He suggested that the court had announced a sweeping exception to the case or controversy requirement, that it risked a major expansion of the judicial role, that it countenanced the dispensing of actual advisory opinions, right? Like some pretty sharp stuff at points. But then he also suggested that actually the case might not have such sweeping implications because defendants might be able to end a case like this by simply paying the nominal damages. And you know, Kavanaugh actually concurred in the Thomas opinion, but did write a very short separate opinion saying he basically agreed with the chief about the defendant's ability in cases like this to just basically end the litigation. But I don't know if it's clear what the rest of the court

thinks. So I think just the full kind of ramifications of the opinion very much remain to be seen. So we talked before about this, about how this would be a strange bedfellows lineup because of the implications for civil rights litigation. I think you definitely saw that in the eight to one lineup. Were you surprised that so many of the liberal justices joined the Thomas opinion? No, because for them, I really think this case is about a principle that is a actual principle for them, which is more permissive rules about standing. Like they believe the court has just been too restrictive and draconian in imposing limits that they don't believe are justified on plaintiffs. And so, you know, just like they upheld the Controlled

Substances Act and Gonzalez versus Raich on Commerce Clause challenges, like these are substantive areas where they have real jurisprudential principles that they will adhere to, even when that sometimes leads them to outcomes that perhaps might not align with, you know, the policy preferences of the party that appointed them. I do want to live in a world in which I can write letters to Steve Breyer and ask him for advice. So maybe this is like a second career he could pursue. Just want to float that, like, if he finds some extra time, you know, and wants to become an advice columnist, you know, happy to help in that endeavor, Steve. We could have a regular segment on the pod.

Oh, yeah, of course. An Ask Steve segment. Oh, my God. Dear God. Oh, my gosh. How many open invitations do we have now? We have an open invitation to Taylor Swift, an open invitation to Elena Kagan, an open invitation to Regé-Jean Page, an open invitation to Meghan Markle, and now an open invitation to Steve. And Amanda Gorman. I mean, we have, like, we could, everyone could have their own special segment of the pod going forward.

And then we wouldn't have to do anything. It's true. And for a little diversity, we added Steve Breyer for the invitation. So, you know, we try. Slide into our DMs, Justice Breyer. So one thing that wasn't in the opinion and then one thing that was, there were unfortunately no Taylor Swift references in this opinion. I took this as a personal attack because this was the case where Justice Kagan asked at argument if Taylor's lawsuit for $1 against the man who sexually assaulted her could proceed under the theory that nominal damages are not sufficient. And that hypothetical really did seem to influence the deliberations of the case after she asked the question, but it didn't end up making its way

into the opinion itself. So a Taylor Swift reference will happen in a Supreme Court opinion, it just hasn't happened yet. But I will keep waiting. There was also a fun back and forth between the Chief Justice and Justice Thomas. Kate, you mentioned that the Chief Justice's dissent got a little snarky. You know, the Chief Justice said, in its view, the common law and to a lesser extent, our cases require that federal courts open their doors to any plaintiff who asks for a dollar. And Justice Thomas, in response, inserted a but see citation to a dissenting opinion by the chief justice in which he said Article 3 is worth a dollar. Zing, methodologically, I think it's also interesting that the opinions, or at least the majority opinion, with its interest in the common law kind of vacillates between two different forms of originalism. You know, on the one hand, you have original intent originalism or original expectation originalism. The fact that at common law,

these nominal damages suits could proceed as evidence that the framers expected that they could do so versus original public meaning originalism, you know, attempting to ascertain like what the core semantic meaning of, you know, Article III cases and controversies requirement actually means.

So just an interesting methodological issue to watch for. So another case that we're watching is an important sentencing case, Terry versus United States. And we're raising it because the Biden administration recently noted that it was changing its position in this case, which is about the First Step Act and sentencing under that law. Specifically, it's about who is eligible for sentence reductions under the Act. So the Biden administration, in contrast to the past administration, would expand the number of people eligible for resentencing. And this would be huge, given the steep penalties that federal criminal law can impose. And the change in position means that someone is going to have to step in to argue on behalf of the government and the court will have to appoint someone to do that.

And so our question is, what woman is not going to get this call to be the court appointed amigas here? No, literally, like when we were when we were preparing the show note, the actual word in the show note is what white man is going to get the call? Well, happily, we have gotten an answer. And unhappily, we were right on the money. Kate, who's going to do this? So on the money, not only a white guy who's a former SCOTUS clerk relatively recently, but a white guy who's a former SCOTUS clerk who's already been invited not once but twice to argue as amicus before the Supreme Court. So he argued and won Beckles in 2016, then was invited to argue a case, Wilson versus Sellers in February 2017. The state in that case ended up changing positions, thus eliminating the need to have an amicus argue. So the court withdrew its invitation to Mortara, but has now issued him a historically unprecedented third invitation to argue before the court. We should note that he's also one of the lawyers challenging Harvard's affirmative action policy in Students for Fair Admissions v. Harvard, which has a cert petition pending right now.

The court seems pretty likely to take that case, so Mortara could have a busy couple of terms before the court. And I guess Consovoy, I think, is counsel of record, so I don't know that he would argue that case, but he's definitely on the brief. But yeah, I mean, it's just, you know, we've made this point before. I'm kind of a broken record on this, but just it's this, these amicus invitations are an opportunity that the court has to genuinely do a little work to diversify the ranks of the lawyers who argue before it. And it seems really uninterested in exercising this invitation authority in service of that goal. All right. So let's move on. We've covered that's a lot of news. And we're going to come back to some even better news toward the end.

But let's dig into what's coming up this week at the court where they have the March sitting. So Kate, there's a really big case coming up. Do you want to tell us about it? Yeah. So maybe we'll start with Cedar Point Nursery versus Hasid, which is a case the court is going to hear on Monday, the first day of the March sitting. A super important takings case, but you know, takings case, I think is a description that really understates the potential magnitude of the case. Okay, so the case involves a California statute that requires employers to allow a limited number of union organizers onto particular premises where agricultural or farm workers work for the hour before work begins, an hour at lunch break, and the hour after work ends for limited periods of time each year. So again, this is a limited number of union organizers.

They can't be disruptive. They also have to stay in areas where employees take breaks. They have to give the employers advance notice. They can only do this four times a year for up to 30 days during each of these four windows. The question that these employers have brought to the court is whether this constitutes a per se taking of access, I guess, to the employer's property. We'll get back to what this constitutional challenge is really taking aim at, but that at least is how it is framed. So the takings clause provides that private property shall not be taken for public use without just compensation. And current doctrine distinguishes between what's known as a per se taking, things like severe intrusions on private property that make it basically impossible for someone to

use that private property. In those cases, the government basically always has to pay compensation and what are known as regulatory takings. So the sort of taking that limits in some way the use of private property, but still allows the owner to make most uses of the property. The government typically doesn't have to pay property owners for those kinds of takings. Under existing law, per se taking is a taking that deprives a property owner, again, of all economically beneficial or productive uses of the property and subjects property owners to permanent physical occupation. So the property owners here are arguing that this is basically a per se taking rather than a license, so not a regulatory taking. safety and health inspections, home visits by social workers, utility companies that can enter private property for surveys or repairs or connections, underground mine inspections,

law enforcement like immigration officials, maybe even anti-discrimination provisions, which prohibit you from excluding someone on the basis of race or sex or other characteristics, or through constructive exclusion like retaliation or harassment. So at bottom, this case represents an opportunity to expand, perhaps even to weaponize the Fifth Amendment in a lot of different ways. This is a point that's made by Aaron Tang, who is a law professor at the University of California Davis's law school and a former clerk to Justice Sotomayor. He has an op-ed in the Washington Post that lays out all of this and also notes some of the origins of this particular regulation, which was part of a lobbying effort undertaken by Cesar Chavez and the United Farm Workers in California in the 1970s as part of their efforts to secure workplace protections for agricultural workers.

The case also has echoes of Janus, which invalidated fair share agreements from public sector unions that allowed unions to collect dues from those who benefit from the union services, as well as other anti-organizing or anti-collective action decisions that the court has recently issued, like Epic System versus Lewis? So I'm thinking this case is not going to end well for workers or more generally the regulatory state slash regulation. And yet these cases don't seem to get the same kind of attention that other major cases like the Affordable Care Act case does. You mentioned Professor Tang's op-ed. I also wanted to flag a super great New York Times

piece by Harvard Law professor Nico Bui. In addition to noting the origins of the regulation, he also talks about a previous case, an earlier case in which an employer raised a similar takings claim and argued that they had a right to exclude unwanted visitors from their property by virtue of the Fifth Amendment. And that was the case that became Heart of Atlanta Motel versus United States, in which the court ultimately upheld the Civil Rights Act and the provisions prohibiting racial discrimination by public accommodations. In that case, you know, a white owner of an Atlanta motel argued that the Civil Rights Act, which prohibited refusing to serve a customer on the basis of race, violated the employer's property right to exclude unwanted visitors. He actually asked the government for $1 million to compensate him for having to serve black customers. Yeah, and the op-ed, I think, very provocatively and correctly analogizes the employer's argument to the argument made by that owner in the Heart of Atlanta case sort of repeatedly throughout the op-ed. So it is very much worth a read. And I have to say, that op-ed and just sort of thinking about this case, and maybe because it is coming up while I'm covering the Commerce Clause in my Con Law 1 course, I don't know if you guys have done the Commerce Clause already. We all do things a little bit differently in sequence. But it's just a reminder that a conservative court that is hostile to regulation can give expression to that hostility in a lot of different ways, right?

So the court in the last few decades of the 19th and the first few decades of the 20th century is simultaneously reading the Commerce Clause narrowly, briefly reading the non-delegation doctrine broadly, affording these broad substantive due process protections of contract, reading civil rights protections narrowly. We talked about this a little bit when we talked to Robe about the amend docuseries, but just the idea that we sometimes really silo these areas of law. But if you look at a particular historical moment, it's sometimes wild how much is happening across these different domains. And it does feel like we might be entering that kind of era, right? So I feel like a lot of us in the legal academy have been focused on like the non-delegation doctrine and the unitary executive and these ways that a conservative court could really limit government's ability to regulate in all kinds of important ways. And this is another sphere in which the court

may do really important and damaging work, sort of eroding the ability of government to regulate in meaningful ways. And all this could be happening at the same time. Well, it's also, I think, of a piece with what some scholars have called the weaponization of the First Amendment against government intervention that we've seen over the last couple of years as well. So, I mean, this is just, you know, using other constitutional provisions as independent limits on the government's existing powers to do things, whether it's the president's power to do something or the legislature's power to enact legislation. So again, thinking about them as co-extensive as opposed to siloed is

really important here. We should also note that California Solicitor General Michael Mongan is also arguing this case. He also argued the ACA case on behalf of California. It's also worth noting that the United States has changed its position here as well. Under the Trump administration, the SG's office initially supported the employers here. They're two fruit producers in California, and they also supported this per se theory. But a letter brief from Acting Solicitor General Elizabeth Prelogar made clear that the SG's office no longer believes that that is the correct analysis. Although, to be clear, the office did not issue a full brief in support

of California's position here either. Yeah, it made me wonder whether the court should do something in these cases where there's a change in positions on the part of the Solicitor General. There was the same issue in the Arizona Voting Rights Act case, right? So the SG changed positions, wrote, you know, kind of a puzzling letter brief, but didn't fully spell out its new view. And I actually thought in that case, it would have been useful to know exactly what the federal government thought. And so to hear, you know, there's just like a page and a half of a brief, you know, definitely repudiating the prior position. But I don't know, it feels like this is a really high stakes case. And it would be worthwhile for us to have a full treatment of

the views of the federal government on this really novel constitutional argument that these employers are raising. And it just made me wonder whether they shouldn't delay cases like this to give the federal government a chance to actually fully brief a question like this. And they don't, they haven't typically done that. All right. Another case that's headed to the court next week, this week, as it were, is Coniglia v. Strom, which is a really important Fourth Amendment case that Leah previewed when she had that fascinating conversation with Josie Duffy Rice and Jay Willis from The Appeal. The question here is whether police officers can enter someone's home to seize property without a warrant. Generally, the Fourth Amendment requires a warrant before police officers can enter a home

and take property. In a prior case, Katie v. Dombrowski, the court said the warrant requirement doesn't apply when the police are performing what are known as caretaking functions. But Katie involved the entry in search of a car that had been towed. It didn't involve entry into someone's home. So the question here is whether there's an exception to the Fourth Amendment that allows police officers to enter someone's home when the officers are performing a community caretaking exception and what the scope of that exception might be. So specifically, when are officers performing a community caretaking exception? The facts of this case are somewhat disturbing. Mr. Coniglia and his wife of 20 years got into a fight. He brought

out a gun and said, why don't you just put me out of my misery? She leaves the home, sleeps at a hotel, but calls the next day. And when he doesn't pick up, she then calls the police to do a wellness check. The police arrive, they find him alive, but he says some things that convinces the police officers that he needs to go to the hospital. They convince him to go to the hospital. And there is some dispute here about what he was told about his admission to the hospital. They then enter the home under the auspices of the wellness check, and they find a cache of guns that they take. The case, of course, has a cross-ideological coalition of amici here. So again, this is another one of those strange bedfellows circumstances where those who are concerned about Second Amendment rights and what search and seizure might mean for Second Amendment rights are very interested in this, as well as those who are more interested

in the broader question of government encroachment in areas of privacy like the home. So again, a lot of different groups here. And Leah, you talked a lot about this with Jay and Josie, but the police actually perform a shocking number of functions outside of merely investigating crimes and collecting evidence of those crimes to which this kind of exception might apply. And it can be very difficult to separate out the investigation of crime from these other community caretaking functions. So where that line is, is a difficult one to draw. So another case we wanted to preview is United States v. Cooley,

which is an interesting case about the authority of police officers of Indian tribes. The question involves whether police officers of Indian tribes have the authority to detain and search someone who isn't a member of a tribe and is on a reservation, though technically he was on a right-of-way within the reservation. This question is really important given the sometimes selective enforcement and lack of enforcement or policing on Native lands by federal officers. Recall that states lack jurisdiction to prosecute a bunch of crimes that occur on reservations. So to the extent there is policing, it is done either by federal law enforcement or tribes or states in agreement with tribes. And the lack of policing and enforcement on reservation lands is part of what has created, you know, the horrible endemic of violence against Native women.

Native women are at much greater risk of being victims to sex crimes, and many of the perpetrators are non-natives. These crimes often can't be prosecuted by states, and so the federal government might not take these cases for a variety of reasons, including the remoteness of reservations, as well as perhaps more pernicious reasons. This case is related to a series of cases in which the court has limited tribes' authority over non-tribal members. Specifically, the court has said tribes can't prosecute individuals who aren't members of a tribe. And I guess the question now is whether the votes have changed. Remember that Justice Gorsuch joined with the then four liberals on

the court to preserve tribal treaty rights in McGirt versus Oklahoma, which really marked an important turning point in the court's Native American affairs jurisprudence. But with Justice Ginsburg no longer on the court, it's not clear there would have been a fifth vote then, and it's not clear what the court will do on Indian law cases going forward. All right, let's do some court culture. Leah, do you have some things to note? So unfortunately, the first development is that we don't yet, we still don't have anything to note, because we don't have any judicial nominees yet from the Biden administration. Chris Kang, who is at Demand Justice, had a Twitter thread about how we shouldn't be panicking. I am kind of starting to panic. So I appreciated his perspective. But he was just noting that in fact, pre May appointments are usually somewhat rare and not always happening in large volume. And that perhaps one explanation for what is happening in the Biden administration

is if the Biden administration is really pursuing nominees with less typical backgrounds for federal judges, civil rights lawyers, public defenders, workers' rights lawyers, then perhaps it might take them longer to put together an application since they haven't been preparing for this their entire lives, or at least since the first year of law school, like some people do. And maybe there will be a big batch, right? It won't be just one or two or three, like one week. It's a few dumps of a big number each time. I at least hope that that's the case because they do need to get the machinery going. I will say since you mentioned Chris Kang that I did an event with him yesterday and he really knows this entity. He was with Senator Durbin for a long time. And he mentioned that he thinks the filibuster isn't long for this world, or at least like in some form, there'll be substantial filibuster reform. And I actually put a lot of stock in that. So, you know, it's separate, of course, from the question of judges for whom there's already no filibuster. But, you know, things like the big democracy bill, H.R. 1, possible structural reform of the Supreme Court, like the landscape just looks so different without a filibuster. So I actually was really heartened to hear that.

Also, Justice Breyer retirement Twitter is now a thing. There is a new account on Twitter at Retire Breyer that notes every day that Justice Breyer has not yet retired. I want to take this moment to make clear this account is not me. It's actually not any of us. Although, Leah, you're mad it's not you. No. I don't think I need to be doing that Twitter account right now. But we're all obviously following that Twitter account. I mean, I think we just need to keep talking about this every week until he announces his retirement. And becomes an advice columnist. Dear Steve, when are you going to retire?

A co-host. Our co-host, yeah. I don't know. We should probably talk offline about whether we're preparing for? A co-host. Our co-host, yeah. I don't know. We should probably talk offline about whether we're preparing to audition. Yeah, he'd need to audition. An actual co-host position. Yeah, exactly. Melody would have her work cut out.

Yeah, that's true. That's true. We would have to run this by Melody given his, let's say, tendency to talk for extended periods of time. Indeed. I will not hear a word against him. I would love to have him as a co-host here. I listened to his Zoom call with those students at the international school in New York, and he was delightful.

I think he would add a lot here. He'd certainly expand our diversity. He might be able to even match or perhaps exceed Kate's optimism. So maybe it would be welcome. He is very optimistic. I would appreciate that. Balance out the Cassandras. Exactly. Yes, he is a Cassandra himself, but more rosy eyed than the rest of us. Okay. All right. So a couple other things to note. The gender and race breakdown of advocates arguing in the March sitting remains pretty abysmal.

We have 15 advocates arguing, three women. Minor progress in that we have more women than Erics this sitting. Only two Erics, three women. Progress, ladies. Slow clap. Slow clap. Although all of the women are arguing as amici, so. Right. All three are from the Solicitor General's office. There are two lawyers of color, zero women of color. Well, time out though. That actually is progress. Three women from the Solicitor General's office. We did not necessarily say that at this time last year when we were talking about who was arguing on behalf of the government.

So that is actually progress. That is true. And I think that acting Solicitor General Preligar makes her debut as acting Solicitor General, she argued, as an assistant in the office. But this will be her debut in that role in NCAA versus Alston. That's exciting. We should all channel our inner Stephen Breyer and be happy about that. That is actually progress. There we go. Speaking of channeling our inner Steve Breyers, wanted to know something that we didn't get a chance to mention in our February recap,

which was that arguing on behalf of enforcing the Voting Rights Act, that is the lawyers who are arguing that the Arizona law is prohibiting ballot collection and throwing out votes cast in the wrong precinct, were a rare pair, a woman, Jessie Amundsen, at Jenner and Block, and a lawyer of color, Bruce Spiva, who I believe is at Covington and Burling. So a welcome development, you know, when these are the two lawyers representing one side in the case. Also, it's nice just to note, you know, when law firm lawyers get to appear at the Supreme Court arguing on behalf of causes like this. In other news, and just in time for Women's History Month, there has been a new cert petition filed by the National Coalition for Men challenging the

selective service system, which requires men but not women to register for the military draft. The Supreme Court, as many of you know, previously upheld the draft in Rothskir versus Goldberg. At that point, though, women were not eligible to serve in combat positions in the military, which was key to the court's reasoning. They are now eligible to do so. And so the National Coalition for Men, which obviously wants to make the world better for gender equality for all women and men, they're challenging this. They've also challenged a lot of other legislation that they believe to be discriminatory on the basis of gender, including organizations like Ladies Get Paid, which sponsors workshops for women on how to negotiate their salary. And they make those

workshops available for women. They've challenged those under state public accommodations laws on the ground that they discriminate against men. So lots of activity there for the National Coalition for Men. In this particular case, they have a great group of lawyers on the case, including Rhea Tabakomar of the ACLU and Kate Stetson at Hogan Levels. During Women's History Month, the Army actually released an ad reminding people to register for the draft. And the tenor of the ad was basically, you become a real man when you register. So they showed this, you know, young child who then takes out a phone registers for the draft,

and then all of a sudden becomes this huge, muscly man with a deep voice, almost kind of confirming that, you know, the sexual stereotyping that is behind some of this. Let me be clear about this. Like, have thoughts about this and I've actually written about some of this. Like I don't just like I have no problem with challenging the draft, especially because it seems undergirded by these sex stereotypes about men and women. But there does seem to be something different about challenging events and organizations that are trying to sort of help bridge the gap between men and women and like pay equity, for example, by teaching women like skills that they might need to sort of be able to do that. And those things are being challenged too. So, you know, this perhaps

is the more benign form of the litigation that they've engaged in, but they've also done some stuff that I think actually makes it harder for women to make up ground and penalizes groups that are trying to equip women with some of the skills they might need to ameliorate their position. So that is where my snark comes from. So one other development we wanted to note was a notable dissent in a DC Circuit opinion, McLean versus Global Witness Publishing. The case is a defamation case filed by two former Liberian officials against Global Witness, a human rights organization, alleging that a report falsely implied that they had accepted bribes in connection with the sale of an oil license for a plot owned by Liberia. It's a fairly straightforward

application of existing law because in order to prove defamation of a public figure or public official, you have to show actual malice, which means proving by clear and convincing evidence that the speaker made the statement with knowledge that it was false, or with reckless disregard for whether it was false. And now comes Judge Silverman in dissent. Where to start? Maybe start with a doctrinal point. Let's overturn some precedent. Why not?

Right. So he calls for the Supreme Court to overturn New York Times versus Sullivan. Big stare decisis for suckers energy in this opinion. Huge, huge. And he does so in, you know, in what is this kind of like sort of right wing screed, right? Like he calls the New York Times and the Washington Post virtually Democratic Party broadsheets, describes a bias against the Republican Party as a long term secular trend. In a footnote cites, who can forget candy crowley's debate moderation well i actually had forgotten it no i didn't do same same i remembered it when he mentioned it but it took me a minute to recall what he was even talking this is i appreciated him reminding me like this was the

2012 presidential debate between president obama and mittney, during which Candy Curley, you know, fact-checked Mitt Romney. And Judge Silberman has apparently been holding on to this grudge, bearing this burden for years. Nine years. Nine years he's been holding on to this. He also accused, quote-unquote, big tech of censoring conservatism and likened those kinds of restrictions to McCarthyism. He specifically criticized Twitter for restricting the New York Post's Hunter Biden laptop story, says all of this is a threat to democracy. And here's a quote. The first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one party control of the press and media is a threat to a viable democracy.

Don't disagree, but see also. Right. So I don't know about you, Melissa, are you aware of any major press outlets that, let's say, are not super left leaning? I can't think of any Fox off the top of my head. Right. So he does address this in a footnote, and the footnotes are really next level. In footnote 12, he says, admittedly, a number of Fox's commentators lean as far to the right as the commentators and reporters of the mainstream outlets lean to the left. So nice acknowledgement of a counter argument, I guess. Footnote 13, he opines that the reasons for press bias are too complicated to address here, but they surely relate to bias at academic institutions.

It's always our fault. Have you noticed that it's always our fault? It is. Keep going. I want to hear about footnote six. Yeah. So footnote six was the biggest stare decisis for Sucker's energy, in which he describes stare decisisis as a constitutional Brezhnev doctrine. He says, convincing the court to overrule these precedents, in addition to calling the court to overrule New York Times versus Sullivan, he also, you know, throws in overturn Bivens, overturn Monroe versus Pape, since those are clearly implicated here as

well. Anyways, he says, when forces that are hostile to socialism try to turn the development of some socialist country towards capitalism, it becomes not only a problem of the country concerned, but a common problem and concern of all socialist countries. Thus, once a country has turned communist, it can never be allowed to go back. That's the version of quote that he is, again, seeing some parallel to stare decisis with. So this is really an exercise in, I don't know, judicial minimalism, originalism, textualism, right? Any of these isms really, really on display here. Leah, what do we know about Larry Silberman as a judge? So we have talked about him before on this podcast. He is the judge that sent an email to the

entire DC Circuit listserv criticizing the, quote, desecration of Confederate graves, by which he meant the effort to rename military assets that were named for Confederate soldiers. He said in that email, Lincoln did not fight the war to free the slaves. And his evidence for this was that his great grandfather's brother who fought for the Confederacy, quote, never owned slaves as best I can tell. That email, of course, as we noted, prompted a law clerk to reply. The law clerk identified himself as one of only five black law clerks in the circuit and corrected Judge Silberman's, you know, assertions. So, you know, who clerked for Judge Silberman? Tell me, Leah. Justice Barrett. There are, of course, lots of Silberman clerks. Doesn't necessarily mean she shares his views, but,

you know, that is the judge for whom she clerked on the Court of Appeals. Well, this also, I think, sounds in the register of something else that we've talked about on this podcast, namely Justice Alito's speech at the Federalist Society Gala earlier. I guess it was last year. It feels like this year just is a continuation of last year, but it was last year. that Judge Silberman echoed in this dissent very much sounded in the same register as Justice Alito's Federalist Society speech from last year, and indeed also echoed some themes that Judge Silberman himself sounded in a speech that he delivered, I guess it's almost, is it 30 years ago now? In 1992, in a speech to the Federalist Society. So these have been percolating for some time. So Leah, can you like maybe shed some light on some of the linkages between the dissent and these earlier speeches? Yeah. So in that 1992 speech, he railed against, among other things, the quote, greenhouse effect, you know, which he was describing as the influence that then New York Times Supreme Court reporter Linda Greenhouse had on the Supreme Court. The New York Times at the time actually, you know, criticized Judge Silberman's speech. And in this latest dissent, he actually favorably cites that New York Times criticism as almost a badge of honor or another piece of evidence of

the bias of the lamestream media. In the speech, the 1992 speech, he had said, the more important influence and the key explanation for the recent misbehavior of judges is the press. He accuses the American working press of accepting and embracing the tenets of judicial activism. And he says the lawyers, reporters, are among the most unbalanced of the press and that the worst, in his view, was found in the pages of The New York Timesiefed that with Senator Sheldon Whitehouse. This really did feel to me like that speech in dissent form or particularly the footnotes. And it's just like, this was clearly somebody who spends a lot of time immersed in right-wing media and just decided to unleash a lot of what he is hearing in right-wing media into the pages of the F3rd. And it was just so inappropriate. It was really shocking. I mean, it's one of the most shocking, I think, judicial writings, like in an opinion form that I have encountered. All the other recent nominees are like, hold my beer, Kate. I thought this was actually kind of amusing. The greenhouse effect could both

be used to rail against the New York Times and Linda Greenhouse and to dispute climate change. It's a multi-purpose kind of like meme. I like that. I like that part. Anyway, ladies, you know what I'm going to do for hot girl summer? I get vaccinated and just like let loose, let loose. I'm getting ready for my second shot and I'm going to make it happen. What about you guys? Leah and I both coincidentally got our first shots this week, got in off of random wait lists. I don't know about you, but I found out I got a spot. We tore over across Brooklyn in the middle of an afternoon. Like, I can't believe this is happening.

I can't believe it's happening. And then it happened. And like, I'm so relieved. Obviously, I have to get the second shot, have to wait. But it does feel like a game changer, doesn't it? It really does. It does. The place where I got my first shot was a massive sports arena.

It looked like filled with FEMA personnel and National Guard. I mean, it just, again, like this has gotten so bad that it's actually a military effort to get people safe. So thank you to all of those National Guard personnel and all of the FEMA folks and everyone who did this, like worked on the vaccine. Thank you. Thank you. Thank you. It really was amazing. I didn't go to the big FEMA site in Brooklyn, but a big, a big site run by a pharmacy, but it was the same, just like unbelievably well organized and well run. And I just felt like I was in such good hands and I feel so grateful to everyone who had some role in getting us here. And getting us back to in-person podcasting down in the basement.

And maybe, and maybe, you know, in-person river dance, TikToking. We'll see. I mean, anything could happen once, like, I mean. During hot girl summer. Hot girl summer. Definitely, definitely. So who else is ready for hot girl summer? The Supreme Court justices, apparently.

The courts. The nine people won most associates with Hot Girl Summer, obviously. Exactly. When I think Hot Girl Summer, I think Sam Alito. Melody, cut that. No, Melody, don't cut that. The Supreme Court's press office reported that most of the justices met in person in the conference room for their regularly scheduled private conference, reflecting the CDC guidelines regarding indoor gatherings of fully vaccinated people. So court is ready to get back to things and maybe we will be able to join them sometime soon. Yeah.

So I think they are. They're definitely going to do the April sitting telephonically, right? Yes, they've already done that. Yeah. But it seems as though public will be able to return to visiting the court in the not too distant future. They're going to resume conferencing in person, I guess, barring some kind of additional uptick. But slowly, slowly, it feels like things are returning to normal.

And that's great. Any other news? One little thing. Senators Durbin and Grassley have introduced a bipartisan bill to require televising Supreme Court arguments. I think that's, you know, televising oral arguments, one of these Supreme Court issues, I can personally never get that worked up about, although a lot of people get really worked up about it.

But I do think that it's been really socially useful in the last year to have the public be able to just sort of dip into these arguments when they're happening telephonically. And, you know, I think that that might increase the likelihood of a bill like this actually getting some real traction. And I think the fact that it's bipartisan is, you know, potentially helpful. Do I think it's the most pressing issue involving the Supreme Court? No, but I think it would be great. Can I insert a wrinkle? I don't know. I'm all for transparency. I think telephonic arguments have been really great. I don't love the sort of seriatim questioning that's happened, but that doesn't have to happen. I am worried about televising this, though, in part because

of what happened to Judge Esther Salas in the District of New Jersey. The fact that the individual who killed her son and shot her husband and was looking for her also had a dossier on Justice Sotomayor makes me worried that, you know, these are people who I think are relatively under the radar, but when they become public figures, when you can actually identify them, and some of them are more identifiable than others, to be clear. The women, I think, are much more visible. Minorities on the court are much more visible than their counterparts to be clear. The women, I think, are much more visible. Minorities on the court are much more visible than their counterparts might be. But I worry that televising it would just make them more of a target. So while I'm all for the transparency, I would actually like to

maybe inject, like, you can have transparency with telephonic arguments and audio. That's really- Yeah, so just kind of to retain the practice of this last year. Yeah, yeah. Like live streaming the audio. I think the courts should do that. But yeah, I think that the cameras became much more complicated in light of the increasing threats against federal judges. Senator Durbin, listen to us. Listen to us.

We know of which we speak. We can do this and be safe too. So the last thing we wanted to turn to, Melissa, I can't believe how patiently you've been waiting for this topic. Why don't you take it away? So there is an event happening on March 25th that I am so excited about, but regrettably, I can't attend because I have to teach my class.

So I hope you all will register to attend. But the Heritage Foundation is hosting an event titled The Crown Under Fire, Why the Left's Campaign to Cancel the Monarchy and Undermine a Cornerstone of Western Democracy Will Fail. Wow. I don't even know where to start. Let's start first with the fact that if there's anything that's un-American, it is not necessarily canceling the rule of a hereditary British monarchy. In fact, that may be the most American thing we've ever done. Indeed, it might be the basis

for which we are American. So I think it's really interesting that the Heritage Foundation, which I think it's fair to say, leans a little bit to a conservative ideology, very pro-framers, very supportive of originalism. It's really hard, I think, to be at once pro-framers and pro-monarchy. And so I wish I could attend this to find out how they're striking that delicate balance with being very pro-founding fathers and standing for Queen Elizabeth II. How does that happen? It speaks to the power of Meghan Markle

that she can send them into such contortions. It's really astonishing. She took a DNA test. Turns out she is 100% that. The British monarchy was bad until they started harassing a black woman is kind of the the like take home i i am getting from this uh that seems like the tldr yeah um but yeah it's a weird flex for an organization that's extremely there for original meaning to all of a sudden be pro-monarchy.

But we've actually seen that over the last couple of weeks since that very trenchant interview with Queen of America Oprah Winfrey aired. That there actually are a fair number of individuals, many of whom sort of identify with this part of the ideological spectrum who have come out in full-throated support of the British monarchy. And again, the monarchy is not really consistent with the values that are typically associated with this side of the aisle. So it is surprising, and I wonder what drives it. I think it's their heartfelt concern about cancel culture, right? They didn't want us to cancel the British monarchy in 1776. They don't want us to do it now. That's what I think is happening.

You'll be back like before. I did think about that song. I mean, it's kind of, I hope that'll be the entry music to this webinar. Oh, that would be amazing. That would be amazing. That's what they should do. Yeah. So listeners, if you get a chance, it's a free webinar.

You should register. I did actually register before I realized I had a conflict. But they do ask you if you have questions for the panelists, one of whom is Camilla Tominey, who is a British reporter who's a member of the Royal Rota that reports on the British royal family. It's just like a collection of reporters from all of the newspapers slash tabloids. And they're the ones who are sort of licensed to report on the royal family. Oh, it's like the Supreme Court Press Corps, but for the royal family. Yeah, for the royal family. These are the people that Harry and Meghan sort of blame for their decision to leave because they felt that they were getting unfair and abusive coverage by this group.

You know, whole different story. But she's one of them. So you can ask questions of them. And so I really hope that some of our Strict Scrutiny listeners will sign up, listen to this, report back to us about what happened. But definitely ask them how they are managing to reconcile their sort of interests in the founding and the basic principles on which the country was founded with this new interest in preserving the monarchy as a cornerstone of Western democracy. This tension between pro-monarchy and originalism reminds me of, you know, the article that my colleagues Nick Begley and Julian Mortensen, you know,

just published this week in the Columbia Law Review about the originalist foundation or really lack of originalist foundation for the non-delegation doctrine in which they debunk the idea that there is, in fact, you know, originalist support for the proposition that Congress cannot delegate, you know delegate rulemaking authority to administrative agencies. Maybe we can talk about that article over the summer. It's definitely important and interesting. But when you were kind of painting the conflict in the same light, I thought of that. Well, I read that the other day, and I think that's exactly right. The one quibble, I guess, criticism I would have of that article is that there is not a single site to the Duchess of Sussex, which I think would have really just made the point even more clear.

Maybe we can get Nick and Julian on the podcast this summer and they can defend that choice. I mean, is it defensible? I was about to say, I don't know if we can invite them on the podcast after they did that. So just to be clear, we have not yet issued an invitation. This is still pending under consideration, given the lack of citations to the Duchess of Sussex. If you want to help us with these citation issues around the Duchess of Sussex,

while also perhaps helping to cancel the monarchy and owning the Heritage Foundation, you might consider getting something from our Duchess of Success merchandise line, where all of the proceeds go to benefit World Central Kitchen. That's Chef Jose Andres' organization that he has partnered with Archwell, the Duke and Duchess of Sussex's umbrella charity organization, to benefit those who are dealing with food insecurity. All of the proceeds go to World Central Kitchen and you can support us, our own take on originalism and

be a cornerstone of democracy as well. So please consider that. Thank you to our producer, Melody Rowell. Thanks to Eddie Cooper for making our music. Thanks to all of you for listening. If you'd like to support the show, you can also become a GLOW supporter at glow.fm forward slash strict scrutiny. And thanks again for listening.