Strict Scrutiny - Dirty Damages

Episode Date: February 1, 2021

Leah, Melissa, and Kate recap the January sitting and the inauguration festivities. They also extend a few invites to join the pod -- so listen in! Follow us on Instagram, Twitter, Threads, and Bluesky

Well, I mean, we're changing our name from Strict Scrutiny to Amanda Gorman Stan Podcast. Yes. Oh, my God. They're already like nine is the problem. The 10th Amanda Gorman Stan Podcast. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke not elegantly, but with unmistakable clarity.

She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Kate Shaw. I'm Leah Littman. And I'm Melissa Murray. Today, we're going to start, as always, with some breaking news. And then we're going to do some recaps of the January sitting and end with some court culture, including inauguration buzz, speculation about appointments, and a few other tidbits. So, Melissa, you want to start us off? So, one of the big pieces of breaking news from last week is that the impeachment articles were transmitted from the House of Representatives to the Senate on Monday, January 25th, ending speculation about whether Speaker Pelosi would send those articles over and in what timeline. So Schumer and McConnell

at this moment are working through the details on the timing of a trial, but also they are organizing a resolution that will govern power sharing between the two parties in this 50-50 evenly split Senate. So this isn't exactly news anymore, but we did want to cover it. And that's the final executions that the Trump administration carried out. The Supreme Court vacated a stay of execution entered for Dustin Higgs and granted a petition for certiorari before judgment, reversing a district court decision that had stayed the execution. Just to underscore how strange this is, this is not the court merely granting a stay and putting on pause a lower court opinion.

They granted a petition for cert before judgment reversing a district court decision, but didn't issue an opinion doing so, even though that opinion allowed the federal government to execute a prisoner with coronavirus in the waning days of an administration before Joe Biden was about to take office and resuspend the federal death penalty. It was kind of gross to me. Yeah, I found it really shocking. It is so inconsistent with our basic conceptions of reasoned decision making, right? If an administrative agency made a decision this consequential, it would have to explain itself, right? The idea that a court, that the United States Supreme Court, no less,

can basically decide this federal prisoner must die tonight. Like, that's what it decided. We're going to reverse a reasoned lower court opinion holding otherwise, but we're not going to tell you why. I just think this is shocking and actually should be quite scandalous for people who follow the Supreme Court and care about its institutional integrity. Under the court's rules, cert before judgment is typically warranted if the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination. So what is the plausible reason justifying practice and to require immediate determination. So like,

what is the plausible reason justifying deviating and requiring immediate determination here? Like, it's the change in administrations, right, which was looming. And I think pretty clearly, the justice's hostility to death penalty litigation. Yeah, no, I think one of those two has to be the reasons, but I don't think either of them are legitimate reasons warranting this kind of expedited consideration. Because surely, you know, a change in administration isn't a legitimate consideration for the court to alter its normal disposition of the case, nor do I think that the justice's general hostility or skepticism of death penalty litigation is sufficient to resolve this particular case. Like, you can't use any particular case as an occasion to kind of stick one to the death penalty bar, particularly here,

given that there was a very good reason why these claims were late arising. You know, the prisoner contracted coronavirus, so he couldn't have brought these claims before. Justice Kagan noted that she would deny the application and petition for certiorari before judgment, but she didn't actually write separately in this case. Justice Breyer dissented, and he highlighted the many questions that the federal government's resumption of executions would raise and questions that can't be answered within the span of a month or two. He said he would have stuck to the normal process and would not have decided this issue before the Court of Appeals had an opportunity to do so. But the real fire in this case came from none other than Justice Sonia Sotomayor, who also dissented and did so forcefully. So if you recall, the last time we talked about her dissenting, we noted that she said she was, for now, respectfully dissenting. Well, it seems like for now is over,

and it didn't last that long. So in her dissent, she spoke to her colleagues, I think to the people, and she said, this is not justice. After waiting almost two decades to resume federal executions, the government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this court should have. It has not. Because the court continues this pattern today, I dissent. No respectfully, no for now. Sotomayor out. And in her opening passage to the dissent, she listed all of the persons that the Trump administration had executed since resuming the death penalty in July. I thought it was an exceptionally powerful and well-done dissent. And I am glad that we are past the for now because I think this case of any really warranted it. So can I ask you guys,

what do you make of her going it alone? As I guess the conscience of the court in some way, like why didn't the other two join her on this? Like, this doesn't seem super far out. I certainly don't think it seems super far out. The note of caution she was sounding was in large part an institutional one, you know, that the court was departing from the ordinary norms of recent decision making that Kate noted, in addition to, you know, leapfrogging the Court of Appeals. So I'm a little, I guess, surprised that Justice Breyer and Justice Kagan, who I think self-identify and are publicly identified as more of the institutionalist wing of the liberal justices, didn't join the dissent. But I think

that this harkens back to something we kind of wondered about once Justice Ginsburg passed away, which is what were Justice Breyer and Justice Kagan going to do? And I don't know that either of them are really ready to live in this new world with Justice Sotomayor. I guess I don't know really where Kagan is on the death penalty broadly in a way that I feel pretty comfortable that where Sotomayor and Breyer, maybe for different sets of reasons, I think would jettison the entire enterprise pretty clearly. And I don't know if that's true about Kagan. Not that Sotomayor is saying that here, but I think that is generally true. So it just may be that she wants to stake out a different position and use a different voice when criticizing the court's procedures in death penalty cases.

Like maybe you read this as in terms of someone who I think tilts more toward conciliation, this felt like it was sort of breaking some norms of civility within the caucus and within the court. I mean, that could be. And just because, you know, we are in the kind of beginning stage of the Biden administration, we'll be talking about some of the appointments that he already has, you know, on the courts at the end of the episode. But this, you know, again, makes me wonder about the kind of people that the administration should be considering. Do you want to be appointing more people who have kind of held their tongue and held their fire, knowing that, you know, that might just be kind of temperamentally like where they are and where they will be even in the face of decisions that undermine, again, established norms of decision making, recent decision making, institutional procedure and institutional legitimacy? Or do you want someone like Justice Sotomayor, who will say, I think this is really

inappropriate on several levels. And, you know, I get that there are different pressures and, you know, different reasons to pick, you know, one versus another. But I do think that, you know, in this new world of judicial nominations, perhaps the Biden administration will be more willing to go with the people who are okay voicing their positions in the same way that the Trump administration was willing to nominate, you know, Republican judges who are willing to do the same. All right. Should we head into the January recaps on that incredibly optimistic note? Sure. So one of the cases we wanted to recap, which we previewed, is Pham versus Guzman Chavez. This is the case about what specific provisions of the Immigration and Nationality Act authorize the detention of persons who are subject to reinstated orders of removal, but also have

pending a withholding of removal claim. At the argument, the Chief Justice actually seized on the statistic we mentioned in our preview, namely that in many cases, granting withholding of removal, which prevents the federal government from removing an individual to a particular country, actually means they won't be removed at all. In particular, if a non-citizen is withholding only proceedings and there's no country other than the one, you know, as to which he claims statutory withholding or convention against torture relief, you know, the odds that you would be able to remove that person are pretty low. Justice Breyer brought up the same.

And even though we noted the concern that this was really a practical on the ground consideration, Justice Kagan synthesized this practicality with the formal eyes of the law. In her mind, this meant that under the law, the government can't put someone on a plane who's currently in withholding proceedings, which seems to make the case fall outside of 1231, which imagines that we're already in the time period for the government to carry out the removal period. Justice Thomas brought up a jurisdictional question that came up in Jennings v. Rodriguez, where he and Justice Gorsuch argued that federal courts didn't actually have jurisdiction over the case, which is a habeas petition, because the claim had to be brought up in a petition for review. And the lawyer for the government arguing the case indicated a response saying that the government thinks that this major immigration habeas case might actually have been improperly decided or wrongly decided. So the lawyer for the government, Mr. Story, says that this is how the court read these provisions in Zeta Vetus, and that's the precedent we've stuck with here. So this might be some stuff that we probably are not going to get out of the Solicitor

General's office in the Biden administration. But again, in the waning days of the Trump administration, this was in full flower once again. Yeah, because Zadavides allowed petitioners to bring habeas claims when their claim wasn't actually about whether they could be removed at all, i.e. whether they didn't have a qualifying conviction, but went to their detention because it was prolonged or something. And it's a really foundational important case in immigration habeas proceedings. So it was just odd to have the federal government lawyer kind of taking potshots at it in the argument. And I think Justice Kagan noted that as well because in one of her questions to the petitioner's lawyer, she said, I guess I'm a bit confused as to what the government is saying about Zadividas. So, yeah. Paul Hughes was arguing for Guzman Chavez and I think did a really great job.

He was super well-versed in immigration specifics. So, for example, in response to one question, he noted that the category of persons ordered removed in the statute actually includes a bunch of people who will never be removed and aren't actually subject to 1231. So he was just able to synthesize statutory provisions saying that reinstated orders of removal aren't subject to challenge really well. But still, I left the argument with no real clear sense about where the justices stood. So what did you think of Justice Barrett here, Leah? I mean, she was really focused on the kind of intricacies of the statutory scheme and how they interacted. It wasn't clear from the way she was talking about the two relevant provisions that she had a particular position, and she was really pressing

both sides, I thought, equally about which view would be the one to prevail. And it really depended on sort of, again, on the statute itself. Yeah. It might just be the telephonic format where you can't see when one justice interrupts another or when one justice is interjecting that I couldn't really get a sense about where she was thinking or some of the other justices as well. But we shall see. Another case that we wanted to highlight from oral argument is one that we previewed earlier, and that's Uzbegbenem versus Przewski. This is the case about whether a claim for nominal damages means that a case is not moot even after the government changes

its policies. So again, we talked about this before. This is a case that presents in a really odd posture because the petitioner is a Christian evangelical who was disciplined for passing out religious material on the campus of a public university in Georgia. But the underlying issue is one that really impacts civil rights litigation. So, again, this is a case that really brought together a coalition of very strange bedfellows that we don't ordinarily see together. But we should note that there were a number of justices who seemed pretty skeptical of the plaintiff's rule that a case isn't moot if a claim for nominal damages remains after the defendant has changed the policy. So the chief justice, for example, equated nominal damages to wanting a federal court to say you're right. And that's not something that federal courts do. And Justice Alito put it this way. A statement that there was a violation sounds like an advisory opinion. So the idea here is that leaving these sort of nominal damages claims in there is basically a signal to make a decision on a case that otherwise would be a determined moot. So Justice Kavanaugh suggested that nominal damages are really all about attorney's fees.

We suggested that was possible in our preview. Some of the justices' hostility to litigation was based in part on their skepticism of plaintiff's lawyers. Justice Thomas wondered about whether the fact that you're asking for a small amount of damages means that your injury isn't real or substantial. I wondered if this collapsed the standard for establishing future injury with a standard for establishing past injury. Actual or past injuries can be small and slight. They don't have to be substantial. And I think that this confusion is partially because there are two plaintiffs in the case, and only one of the plaintiffs was actually told he had to leave, whereas the other plaintiff

heard about that and wanted to pamphlet subsequently but didn't. And the plaintiff's lawyer from ADF, Kristen Wagoner, started responding to questions by referencing past chilling effects and future intentions. So she said, for a 12B motion, which this case is on, the general allegations are sufficient, yada, yada, yada. But Joseph had a specific intent here, and that seemed to be about future injury. Hashim Mupan, arguing as amicus for the Solicitor General, also seemed to do this. In response to a question from Justice Thomas about standing to pursue nominal damages, he said, I think it would turn on whether there was a credible threat of enforcement. The skeptical justices also wanted

to know, well, then when, if ever, could cases be moved under the plaintiff's theory? Nominal damages aren't available against the federal government. An offer of judgment might allow entry of judgment and make a nominal damages claim disappear. So the defendants seem to argue that any damages below $20 would mean that the plaintiff's injury wasn't an injury at all and wasn't compensable. mess up things like statutory damages, you know, where a statute designates a particular amount for certain, you know, conduct or punitive damages, which also aren't necessarily tied to actual damages. And so the theory that the defendant was arguing, I think, just has the potential to mess up a fair amount of law. But Leah, one justice came in with some big damages energy into all of this. And that would be our boy, Steve, our fellow Cassandra, who understands the threat to mootness and federal courts theory that this case poses.

He actually refused to let the chief justice cut him off. So if the plaintiff says he's entitled to a dollar and the defendant says, great, I'm willing to pay a dollar. That's the end of the case. Justice Alito? The only cases that we really have left are where we have two diehards and they really won't give in and they're fighting over a dollar. That's exactly right. Just like you have two neighbors who insisted on fighting over a trespass suit over a dollar. Justice Alito? Is this revenge for the wrongful interruption several arguments ago? I just love the image of Justice Breyer wearing a cashmere lingua franca sweater that has embroidered across the front, I'm speaking.

And he's just like, no, I'm not done yet. You'll wait. You'll wait. See, no one is shushing me today. We're talking about damages and you're going to listen. You know, we said on our last episode when the chief cut Justice Breyer off, no one puts Steve Breyer in a corner. And today, you know, or I guess in this argument, Justice Breyer made that clear. You know, another possible theory, maybe Justice Breyer is on the

verge of retiring. And so he feels the need to get in all of his questions now. Again, I'm just floating possibilities. I just see like maybe Justice Kagan coming up and like Stephen Breyer running into her arms and being lifted up like in Dirty Dancing. It's like that moment. And I'm like, I'm here for it. I like it. I like where you're headed with this. Perhaps one of our astute or intrepid listeners could Photoshop this so we can all see that image and not just in our minds. Dirty damages. I love it. There we go. So this argument was wonderful for all sorts of reasons. It included the moment I have been dying to talk about on this podcast forever. And that is, of course, when Taylor Swift came up at oral argument by Justice Kagan in a case about federal courts and remedies. Like literally all of my interests.

These are all of your things. These are all of your things. All of my favorite things. All of my favorite things. Do you think she knows these are all of your favorite things and she's just like dropping these Easter eggs for you? You know, I'm willing to indulge many different theories, but I do want to put out there in the universe, Justice Kagan, come on the podcast and we'll talk Taylor Swift, or Taylor Swift, come on the podcast and we'll talk Justice Kagan. We have so many invitations out right now. We have Leslie Jones with an outstanding invitation, Justice Kagan, Taylor Swift.

We're probably going to extend one to Amanda Gorman as well. You're previewing, you're previewing. We'll make room. But back to Taylor Swift. Let's play the Justice Kagan clips here. Let me give you a case. I don't know what case, who this cuts in favor of, Let's play the Justice Kagan clips here. case. Do you know that one? Vaguely, Your Honor. Yeah, you know, it was a few years ago, and she brought a suit against a radio host for sexually assaulting her. And she said, I'm not really interested in your money. I just want a dollar. And that dollar is going to represent something

both to me and to the world of women who have experienced what I've experienced. That's what happened. The jury gave her a dollar. And it was unquestionable physical harm. But she just asked for this one dollar to say that she had been harmed. Why not? Nobody thinks that being sexual assaulted is really only worth a dollar. Nobody thinks that. It's worth a lot more than that. But that's all she wanted. She wanted to prove a point. I think Taylor Swift should sample this in her next record. Oh, my gosh. Talk about all of my interests. This would be the third quarantine album about federal courts and nominal damages. I cannot wait. Cannot wait. The hypo itself was really good. And Justice Gorsuch and Justice Barrett picked up on the hypothetical after Justice Kagan finished questioning. Justice Kavanaugh, who is the other justice who followed Justice Kagan, did not. But

it is a really great hypothetical. I also just love that I sort of felt like I heard in Kagan's voice both like appreciation for the sometimes difficult to quantify or monetize harm that Swift was described experiencing in that lawsuit, but also just like real respect. I felt like she was probably a Taylor Swift fan. Like I feel like I could hear that in the question. Yeah. There's a flannel under that robe. She's wearing a Betty's Garden t-shirt, right, a cardigan. Me too, Justice Kagan. But yeah, I mean, it's really great because it just perfectly captures, you know, the idea that people get all kinds of things out of litigation, you know, that can't perfectly be captured by, you know, damages to your wallet or monetary damages. Yeah. Is this what counts as sorority

banter by middle-aged women? This was a critique that was leveled against us that Melissa is referring to, our sorority girl collegiality. Whatever. I guess we should just be meaner bitches. Sigma sigma till I die. Sigma sigma strict scrutiny. Yeah, the sorority for middle-aged women and their banter. Okay, what's up next, Kate? FCC versus Prometheus Radio.

We previewed this case at some length, so we won't talk about it for too long. But at issue in this case is a challenge to an FCC decision to relax certain cross-ownership restrictions. And the challenge, which was successful below, was that this decision was arbitrary and capricious. There was a lot of interesting discussion about what the agency was required to do and say if it wished to change positions. In addition to this issue that Lee and I talked about some, which is how much evidence it needed to have and how good or strong the evidence needed to be. There seemed to be some disagreement about almost a step zero question about arbitrary and capricious review, which is how much deference or explanation is warranted when an agency changes priorities. Here, for example, changing to prioritizing competition more than valuing diversity along lines of race or gender in media ownership. The justices also kind of

struggled to clarify what exactly the FCC did and why. They also struggled to clarify the party's positions. Were they arguing that the FCC had to consider race and gender? Were they arguing that it could? Did they think that the FCC considered race and gender? And Justice Kagan wanted to know, the government lawyer, are you arguing that they didn't think that the changes would affect female and minority ownership? Or were they saying something more like, well, we just don't have evidence of this and we aren't going to let no speculative or imperfect evidence get in the way of what we were going to do anyways? And another question that came up was whether the commission had its own obligation to collect data or whether it could

rely on the data that was submitted in the notice and comment process. I thought that there was some sort of maybe shifting in the argument and actually even the description of the history of the agency that you sort of saw on display in the government's argument, we should say that Ruthanne Deutsch was spectacular. She was doing, as we mentioned, I think in our last episode, this was her first argument, although she's a very experienced appellate lawyer, but her first SCOTUS argument. And her opening really channeled what we talked about when we previewed the case, which is like, it actually, even though it's a slightly distinct set of questions from some of these big admin law cases that arose before the court involving Trump policies, it was actually pretty thematically linked in particular, I'd say, to the census case. And what she was sort of underscoring was what the commission cannot do under time-honored administrative law principles is mask important policy changes behind this kind of unreasoned analysis.

So if the FCC wants to say we don't believe that pursuing diversity on the basis of race and gender is an important priority, like all we care about is competition, then they need to say that forthrightly and allow for public debate of that change in position. But instead, they sort of tried to do it in this kind of sneaky way. And that I think was the point she was making she seemed to get some traction. She was also just masterful in her command of the record in a way that I thought was particularly on display in a clip of the argument we'll play in a minute. So basically, both Helgi Walker for the broadcasters and Malcolm Stewart for the government seemed to be taking the position that the FCC had actually never considered women and minority ownership, at least in the specific context of the sort of deregulatory decision

at issue here, which seemed to mark a change from its briefs. And Kagan gives Ruthann a chance to address this. And what she does offer is just seemed pretty fatal to the government. So let's play that clip here. I just wanted to make sure that you had the opportunity to respond to that assertion of the government's that it had historically not taken female and minority ownership into account in the 202 context specifically? I didn't, it's a better question for Mr. Stewart. I agree that it hasn't been the only factor or a primary factor, but to the extent that Mr. Stewart was saying that it had never been considered as a factor, I think that's just not consistent with history. And then... Well, I guess I'm really giving you an opportunity to tell me what to look to to decide whether you or Mr. Stewart is right on that question.

Thank you. So, again, I would look to the earlier orders cited in page 6 and 10 on our brief that are predate 202. And then the first 202 review, 2002 review under 202 defines the policy goals and said, we will first define our goals, we can then assess whether our current broadcast ownership rules are necessary to achieve these goals. Then talks about the five types of diversity, which include minority and female ownership as one goal. And says, and this is at 18 FCCR at 13634, encouraging minority and female ownership historically has been an important commission objective. And we affirm that goal here. And then again, JA 335 talks about how the commission's

broadcast ownership rules help further this purpose of promoting minority and female ownership. Coming out of the case, bottom line, like what do we think is going to happen? I agree Ruthann was fantastic. And I think many of her responses were quite devastating to the government's position, you know, that it had never considered race and gender ownership in the past. But nonetheless, there did seem to be a majority of justices on the court who were inclined to reverse the Third Circuit and uphold the FCC's modification of its rules. I think that's probably right. although I did think the chief might have been on board with affirming. He said a few things that made me

think that because the FCC hadn't explicitly disavowed this interest, even if the argument before the Supreme Court was that it had never really taken it seriously, but not having disavowed it, having previously pursued it, had to give some kind of explanation if it was going to change course and hadn't done that. So I read the chief as being pretty sympathetic, but of course, that's not enough. It's not enough votes. So to that point, Kate, because I think it might lead to administrative law doctrine and good or bad, I think that's the reason why the chief will not peel off. I mean, if he stays with the conservative wing of the court. He can dictate who writes that opinion and maybe even keep it for himself and craft a narrower decision than some of the other more skeptical administrative law folks on that block would be willing to do. I think I would take that.

Yeah, as long as it doesn't really like walk back anything in the census case, which I don't think it would. But yeah, I think that's an interesting possibility. So the other case we wanted to recap, which we previewed, is BPPLC v. Mayor and City Council of Baltimore. This is the case about the scope of appellate review for remand orders, orders sending a case back to state court after a federal district court concluded the case was wrongfully removed. Specifically, the question is whether an appellate court can review other grounds for removal aside from whether the defendant is a federal officer. One concern that came up in the case was about gamesmanship, whether defendants would include additional grounds of removal, like the allegation that they're a federal officer, in order to secure potential appellate review of other grounds for removal, which wouldn't ordinarily be available. And in any case, that would delay resolution of the case, even if they don't successfully keep the case in federal court.

Cannon Shanmugan, the lawyer arguing on behalf of the oil companies, suggested that the possibility of sanctions would prevent this. I get that. I'm just not so sure that's a real deterrent, given what we saw, for example, in the election lawsuits. I think judges are really quite reluctant to impose sanctions, and they're reluctant in part for reasons that Justice Breyer alluded to, which is like it's called uncertainty and we just don't know. Justice Kagan countered that perhaps the solution would be in a case involving a frivolous ground for removal

that itself would allow the courts to say they don't have jurisdiction over the issue and the case. But it was just hard to read and I just don't think the possibility of sanctions is a meaningful deterrent here. So Justice Alito was recused in this case. Do we know why? I assume it's because of stock ownership, but I don't actually know. There were some groups who wanted Justice Barrett to recuse herself because her father is an employee at Shell Oil. And Shell Oil and British Petroleum have a joint marketing venture

that sort of unites them for purposes of their work in the oil industry. And she's also recused herself on Shell Oil cases that came up at the Seventh Circuit. So unclear why she was included in this particular case, but Justice Alito was not. Yeah. I mean, it's possible they were concerned about if two recusals would lead to an evenly divided court, although there would still be seven justices left. So I really don't know what might have motivated the change in recusal policies from the Seventh Circuit to the Supreme Court. Interesting. Do you have a particular read on this? Do you have any ideas? I think that the oil companies will probably prevail.

I read both Justice Gorsuch and the Chief Justice to favor the oil companies. I think Justice Kavanaugh does as well. He said that the text of the statute favored them and he was skeptical of the theory that Congress had ratified court decisions that had said other grounds for removal weren't reviewable when Congress kind of amended the statute but didn't alter that key language. I thought Justice Kagan asked a hypothetical that pressed clearly on whether the word order was really doing all of the work that the justices claimed that it was.

And her question was, you know, if the defendant on appeal abandoned the argument that they were a federal officer but pursued the other grounds for removal, would you still say there is jurisdiction to review that question? And the federal government as an amicus clearly wanted to say no, but if you're resting solely on the word order in the statute, well, that's still reviewing the order itself rather than a particular claim. But the idea that that would be improper might tell us whether, again, the word order is really doing the work or other considerations that the court might have in mind when it's thinking about this case. I was not sure where she was leaning in particular. I think Justice Sotomayor was sympathetic to the idea that Congress had ratified the

earlier Court of Appeals decision saying these additional grounds were not reviewable. Justice Barrett was not sympathetic to that. And she was suggesting that one reason to think Congress hadn't ratified those decisions was because they had been criticized. And that line of questioning or argument really made me think back to some of the debates about stare decisis, where, you know, Justice Gorsuch and other justices suggested that if a prior decision had been criticized, that meant it was entitled to less respect and deference under the stare decisis doctrine. So hard to say, although if I had to guess, I think the oil companies will probably prevail. Can I ask a question, though? Am I right that they're asking, there's like some very audacious request for the court to reach the

merits of this as well, not just like answer the remand question. And that just seemed like, really, you think the Supreme Court could appropriately do that here at this posture? Well, the specific question they want the court to decide is not just that the court can review the additional ground for removal, namely whether it's a federal question and arises under federal common law, but they also want the court to answer the federal common law question, right? Exactly. And like, that seems bonkers to me, given that me, given that the courts below haven't passed on that question. They were saying, well, it's encompassed in the issue. You know, no, it's not.

It's related. But, you know, you don't have to answer that question if you're resolving whether a court can review that additional ground for removal. I found that ask just pretty surprising and audacious. And even if they win on the remand issue, it seems really unlikely to me that they actually get a merits ruling in their favor. And the only other thing I wanted to flag was there was also this moment when the federal government's lawyer, it seemed just like the kind of like sort of mask of like legalistic arguments seemed to slip. And he was just like, cases like this should just be resolved in the federal courts, like cases about climate policy. It was like, well, that's not a legal argument, I don't think.

Well, and not only is it not a legal argument, but it is exactly the line of argument that Senator Sheldon Whiteboard Whitehouse, you know, said was driving this case, which is that the oil companies, you know, with the support of the federal government here, you know, as amicus with the Trump administration want these cases in federal court because they think, right, that's going to be a friendlier audience. And yeah, like, there was a real tell that moment. Yeah. I wonder what you would make of the absence of Justice Ginsburg in this case, because she was sort of the leading proceduralist on the court. What would she have done with this? And, you know, were the oral arguments, I think, impoverished for her absence and sort of keen

acumen on some of these questions? Oh, definitely. Always. Yeah. You know, I think that her presence was missed. But, you know, in this telephonic situation, I think the opportunities she would have had to clear up some of the confusion are probably less than if we were live. Some of the justices were invoking an opinion that she had written as ostensibly supporting the oil companies, and I have no idea whether she would have agreed with that reading. That was the Yamaha opinion. Right. And so certainly her presence there was missed. Court culture. Well, I mean, we're changing our name from Strict Scrutiny to Amanda Gorman Stan Podcast. Yes.

Oh, my God. They're already like nine is the problem. Amanda Gorman Stan Podcast. So first of all, let's just roll our sleeves up and talk about this. This was actually way better than I thought it was going to be. You're saying inauguration broadly. So the experience of inauguration on Wednesday, January 20th. I don't know what it was. I mean, I worried about the threat of violence. I worried about all kinds of stuff. It seemed like sad, like the field of flags

was moving and poignant, but it's like such a change from past inaugurations where, you know, there were crowds of various sizes, but there were people there celebrating. So there was sort of a kind of weird maudlin quality, I thought, that would be there. But it actually seemed incredibly joyful. And, you know, it was just really nice to see everyone together, everyone wearing masks. Although I will say, like, can someone please help Bill Clinton keep his mask on his face? Like, he just had so many problems with that. And I was like, do you not have- There was a lot of no's. We saw a lot of actual no's, which you shouldn't see when someone is wearing a mask.

You should not see. Like, I appreciated that, appreciated that Mike Pence was there, although I have to say this whole, we need to give Mike Pence a Medal of Honor because he showed up at the inauguration. I still remember what happened before January 6th. I'm not here for the medal giving, the trophies for participation. He was supposed to be there. He showed up. Good for him. I don't know if you listened to Trump's like weird goodbye speech at Andrews a little bit earlier. We will be back in some form. Which makes it sound like he's going to literally be wound up in a turban that Melania wears and like just like stuck to the back of her

head. Yeah, there's a lot of Harry Potter references that I feel like it naturally inspired. not attending the inauguration. It's like, well, if it's just a normal goodbye, why are you not going to the Capitol? So it was like, in some ways, it made it all the more absurd that he chose not to attend, although I'm really, really glad that he did. I don't think that the joyfulness that you are describing could possibly have occurred had he been there with his glowering presence on the stage. Would it have made it more joyful? Like eat it, eat it, eat it. I can't imagine he would have worn a mask. So he would have had to actually look at his whole face. Yeah, no, I'm really glad he wasn't there. So I loved when they deplaned in Palm Beach and, you know, Melania is wearing this amazing Gucci kaftan.

I know there's a lot of debate on the internet about whether this was terrible. I think her shoe choice was terrible. She wore like these navy blue Roger Vivier flats. Totally wrong for this dress. Call me. I have no idea what words Melissa is saying right now. Do you? Just word salad, word salad.

But she had this Gucci kaftan and it was like so perfect for Florida. I mean, it's like a zillion dollars. Like I just, I hope like the Gap will make aan and it was like so perfect for Florida. I mean, it's like a zillion dollars. Like I just, I hope like the Gap will make a version of it and maybe I'll buy it. But she came down the stairs and he of course stops to talk to the press corps. And she's literally like, I'll wait in the car later. I don't have to do this anymore. And it was like, it was like all the energy was like amazing. She was like, I'm going to the limo. Bye. But the energy of the actual inauguration was amazing. So fun. It was fun. Like Lady Gaga, Jennifer Lopez. Okay, with a whole ass bird on her. Like extremely cute military escort who just was the whole time he was like, you saw on his face, like, I can't believe this is my life. Well, I mean, like, first of all, she was face like, I can't believe this is my life? What is this? First of all, she was wearing

tires as a skirt. I don't even know what that was, but it was amazing. That was fantastic. And then she had this ginormous Brooklyn pigeon stapled to her blouse. Gold-plated pigeon. Gold-plated pigeon. That was amazing.

And Jennifer Lopez sounded better than she's ever sounded before. And the whole let's get loud reference in the middle. I was like dead. Yeah. Amazing. It was a reference. She slipped in part of her own song.

Patriotic tunes. It was incredible. It's a boss move. I was here for it. And I loved the jewel tones that so many of the fierce women were wearing. Melissa, why don't you just go? Because I'm not going to be able to accurately describe what was actually happening besides jewel tones,

although I would like to describe what I and Cody Rigsby thought the color of Amy Klobuchar's peacoat was. What was Amy Klobuchar's peacoat was. What was Amy Klobuchar wearing? It was hot dish casserole peacoat. Corn casserole is what he said. I think this is very unfair to Amy Klobuchar. I thought it was a beautiful color. It was a beautiful yellow.

It looked great on her. You know, if you're not from Minnesota, you don't understand how awesome hot dish, tater tot, corn casserole is. Like, that is itself joyful and joyous. But Cody Rigsby is from North Carolina and not Minnesota. So I think he was shading her and I don't think it's fair. I think you meant it as a compliment. It's a jewel tone. It's got to go on the rainbow.

I thought that coat was like actually really adorable. I loved Ella Emhoff's Mew Mew sparkly tweed coat. That was lovely. But my favorite, favorite look of the day. Oh, Jill Biden also looked amazing and had like a little bling, like she had like a built-in necklace. Like, you know, that's always festive. But the best dress of the day had to be forever floatist Michelle Obama, who literally was like, I'm not wearing skirts to this. I'm going to wear pants. They're going to be fabulous. I'm going to wear the same color that I wore four years ago. Only

you're going to see what I would have done if I actually gave a crap about this inauguration. And so like 2016, she wore some like school marm, like sweater set dress. It was sad. She put her hair in a low bun. She was giving side eye. She was not feeling it. But this time she just like walked in. Like it was like, she got off a plane from Wakanda. She was wearing like those pants. She had this ginormous belt buckle. Her hair was flowing. And it was like, I didn't even notice Barack Obama. I was like, like Michelle Obama and escort. Like she looked amazing. And the internet was just... I was actually riding on... I was on a Peloton ride and it was like we had the TV on mute and I literally just got off.

I'm like, I'm not going to get anything done today. I might as well just stop and just talk about this. She looked fantastic. It was amazing. She was exquisite. The other thing that was weird is her outfit, her hair, all that was gorgeous. But also, whose face looks that good with a mask covering half of it? It was like she was stunning even in her face. Like it made no sense. Yeah, she really, she was, she stole the show. I mean, like her and Kamala, like they're just like, girl, you look fly. No, you look fly. No, you look fly. That whole thing was great. That was amazing. So I was also going to bring up our new second gentleman and the excitement he brought walking out the White House with the vice president. He is so stoked to be into his role. Like he is so thrilled for her and for the country and his kids seem awesome. And yeah, no, I'm here for the Harris-Emhoff clan. That was awesome.

There's a law connection, right? So he's teaching at Georgetown, right? I don't know if it's his spring. So I think that's very cool that some law students will get to take a seminar with him. Yeah, Doug, if you want to come on the pod, feel free to join. Now we have four invitations out. I hope someone comes through. Leslie Jones, Doug Emhoff, Elena Kagan, any of them. And Taylor Swift, any one of you four.

Who is the most likely to actually have that cash out? I'm clear. But speaking of Justice Kagan, several members of the court were at the inauguration and Justice Kagan was clearly a fan of National Poet Laureate Amanda Gorman, as we all were, because after she walked off the stage, Justice Kagan fist bumped her. I think it was, was it an elbow bump or was a fist bump? I couldn't tell. I watched it like three times. I couldn't quite tell, but there was some contact made.

She's definitely expressing expressing affection and interest. The court actually had a really great moment. I felt a little bad amidst all of these glorious jewel tones. They were there in their robes, like a sad moment. Three of the justices weren't there. Remember the last inauguration, Justice Breyer had some adorable little toque that he was wearing. He was bringing some fierce toque action to it. He wasn't there. The older justices stayed home. So Justice Thomas, Justice Alito, and Justice Breyer stayed home. So it was actually the first time you've seen Justice Barrett with her colleagues in some sort of official function, like other than

when she was sworn in and she appeared with Chief Justice Roberts. But that was interesting. Justice Sotomayor swore in Kamala Harris. That was a lovely sort of poignant moment of first meeting first. On Thurgood Marshall's Bible. Amazing. And the whole thing was just so sweet and familial. And then the fireworks afterwards and Ashley Biden's tuxedo. We didn't even talk about that. Like I was here for all of it. The justices actually seemed just from their faces

to be enjoying themselves too. Like there was that moment, was it after the inaugural address or after Roberts actually administered the oath? But at some point there was applause. And sometimes they're, you know, like a little reluctant to applaud, like at the State of the Union. And I don't know if historically they've applauded at, you know, it must be nice since I assume many of them are vaccinated. But, you know, anyways. Amanda Gorman. Like, this poem was fantastic. It was beautiful.

She had such poise. And, like, she later revealed to Anderson Cooper that she had suffered from a speech impediment throughout much of her early life. And, you know, this was sort of the occasion that would like lead to a relapse. And she was kind of worried about that. I think she pronounces her R's like W's or like she had. And so big occasions like this, like she worried she might lapse into it. But it was just so lovely and so moving. And she was so young and luminous. And it just seemed like just this really hopeful moment, turning a page. Can I say my favorite line?

Sure. Yes. We've learned that quiet isn't always peace. And the norms and notions of what just is isn't always justice. That was great. Yeah. I really liked this. It's because being American is more than a pride we

inherit it's the past we step into it's how we repair it it's sort of there was so much like hamilton um rhythm to the whole poem and explicit references and some actual references too yeah she's clearly a huge fan it felt really hopeful in a way that i did not anticipate it feeling like it just, it just, and then just like incredible relief, not only that it wasn't like some catastrophe and, and just that, like, maybe we were turning the page, like, and then, you know, Joe Biden immediately goes to work, like signing executive orders and making people wear masks in federal buildings. Here for it. Yeah. Yeah. One thing Joe Biden has not yet done, however,

is announce a nominee to be Solicitor General. At least he hasn't done that yet at the time we are recording that episode. He did name Elizabeth Preligar as Principal Deputy Solicitor General, which means she will be acting Solicitor General at least until a Sol solicitor general is confirmed. There has been some reporting about who's under consideration. Justice Leandra Kruger of the California Supreme Court reportedly turned down an invitation to be the solicitor general. I guess she doesn't want to be the 10th justice. She just wants to be the 9th.

Boom. Boom. Boom, lawyer. Yeah. I'm sure she has very good reasons for wanting to turn that down. But in one of the reports, there was this extremely interesting and I think problematic statement by a member of the transition team who suggested that the transition team is still interested in filling the position with a woman, preferably someone with litigation experience and stature, but then immediately noted that there were several men under consideration. And it almost seemed to be an implication that there weren't women with sufficient stature or litigation experience to be named Solicitor General?

Have we talked about this before? I don't think we have. Do we have views about this? Um, you know, we rattled off like many different women with more than enough stature and litigation experience to be Solicitor General, whether it's Ginger Anders, Sarah Harrington, Nicole Saharsky, Lauren Ali Khan. I mean, the list could go on and on and on. But more to the point, several men who have been nominated as Solicitor General have not had very many Supreme Court arguments when they were nominated. Seth Waxman had six Supreme Court arguments.

Noel Francisco, three. Drew Dace, five at the time they were nominated. So there are many women with many more Supreme Court arguments than that and experience in the Solicitor General's office. You just have to pick one. We should also probably say how many Supreme Court arguments Selena Kagan had when she was named Solicitor General's office. You just have to pick one. We should also probably say how many Supreme Court arguments Selina Kagan had when she was named Solicitor General, right? But did she have the stature, Kate? The number of arguments is zero. She definitely had the stature. But yeah, it's ridiculous to point to that as the sticking point, if that's the suggestion.

Some of the reporting that I read kind of noted that one of the reasons more men seem to be populating the list, even though there was this explicit charge to look for a woman, is that, you know, women haven't argued as much before the court. And that is certainly true. But I mean, that is also a problem of your own making. Like if you want to have women with sort of like glittering record that would make them obviously available and appropriate as picks, then give them the opportunities. We've been saying that for forever, but, you know, to the extent that other men have been named with fewer than 10, I mean, you don't have to be Paul Clement to get this job. Like there are lots of women who've had this experience and could do this

properly and should have the chance. Yeah. Some other news that I wanted to flag that we had kind of previewed earlier, Judge Robert Katzman on the Second Circuit went senior status effective January 21st. And Melissa, what are his plans after that? He's going to hang out in the faculty lounge with me at NYU. I'm like, when we can do that in person again. But I am so delighted that Judge Katzman is coming to NYU as a professor of practice. He has taught for us in other capacities, but it will really be fantastic to have him formally as a member of the faculty in a more robust way. So I'm really excited about this. I just wanted to put some real respect

on the fact that he announced he was going senior status effective January 21st, like, inauguration day, like at noon, that day, like, that's a real vibe. And, you know, it left me wondering, like, is he trying to signal to other judges, like, okay, you know, it left me wondering, like, is he trying to signal to other judges like, OK, you know, this is how we do it. This also means, of course, that Joe Biden has a vacancy to fill on the Second Circuit. I am wondering if he will do what is necessary to enforce the Voting Rights Act and appoint Dale Ho to the Second Circuit. Say his real name, Leah. Dale F them up, Ho. And that is how advocates will have to address them.

Justice. This is actually a really interesting move because when you become a senior judge or you take senior status, you don't necessarily stop hearing cases. Like you can still be part of the court and its work. You just free up your seat to be filled with an active judge that, you know, the president at the time gets to appoint. You would hope you see more like this. I mean, I do think that Judge Katzman is a relatively young guy. He's in his 60s. So this is something, there's no reason that he had to take senior status now. And I expect, just as Melissa says, you have a lot of control over how, what kind of caseload you continue to carry as a senior judge. I think he'll hear a lot of cases. You lose certain kinds of seniority in the decisional process within your court.

But I just think a lot of other judges who are eligible should follow suit. And I hope that our former guest, Marin Levy's suggestions about ways that circuits can basically implement rule changes to sweeten the deal for senior judges or to create incentives for judges to take senior status. Lots of that can be done without legislation. I think maybe all of her proposals can. But I hope that the Biden folks are thinking seriously about how to implement all that because, you know, Trump was incredibly successful at filling vacancies on the lower courts. And you can only really fill vacancies if you have vacancies, unless you're going to create new ones, which is, of course, something else they might want to look at.

But I hope that Judge Kasman is just sort of the trendsetter in this regard. I also heard that President Trump is getting ready to mount his impeachment defense, but he's having difficulty finding counsel for the impeachment trial. I've also heard the pay is not great for... Sorry. Anyway. And perhaps this is where we should end. Thanks so much to all of our listeners. If you are listening and you like what you hear, please consider being a subscriber and supporting the pod in a robust way. You can subscribe at glow.fm forward slash strict scrutiny.

We also want to say thank you to our producer, Melody Rowell, and to Eddie Cooper, who does our music. And if you are a con law student this semester or a con law professor, we hope you'll check out our latest venture, Irrational Basis Review, which takes 12-minute intervals and explains all of the most important con law concepts, again, in 12 minutes or less, sometimes 17 if we have a lot of cases, but you get the idea. So check it out.