Strict Scrutiny - Earth to Nancy

Episode Date: May 18, 2020

Leah and Kate break down the major arguments in the presidential immunity and subpoena cases as well as the major (?) social media and supporter updates for the podcast!  They also discuss McGirt v. Oklahoma and the ministerial exemption cases. And enforcing the Voting Rights Act too (of course). Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome, listeners, to another episode of Strict Scrutiny, a podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts this week. I'm Leah Littman. And I'm Kate Shaw.

So, Kate, we have a lot to recap, but we also have some fun Strict Scrutiny updates that we wanted to share with our listeners. So before we get to the case updates, a few podcast updates. We've mentioned our GLOW campaign before briefly. GLOW is what allows you to support the show, which is what allows us to make the show happen and specifically to pay Melody. We had our first happy hour for our GLOW supporters this past week over Zoom, of course. I had a lot of fun at it. What did you think, Kate? It was great. I love that we made the Pacific Time folks drink at 1 p.m. But people really did show up to happy hour with a beverage in hand. But it was fun.

It was really cool to meet a lot of people who listen to the show and are interested in the stuff that we talk about. And we want to do more of them. Yes, we are hoping to do more of them. And I agree. It was really fun to put faces next to anonymous listeners. So we did a video that coincided with the argument in the last case of the two-week sitting, which was the faithless electors case. So we just kind of got on Instagram and talked a little bit about the arguments as they were happening. We had,

I think, only pretty minor technical difficulties. We still have to figure out exactly how to sort of overlay our voices and the audio of the arguments. But again, it was fun. We had a lot of people sort of pipe up with questions and, you know, occasionally advice about how to use the platform. And I think we... Which we've greatly appreciated, by the way. We need all the help we can get. And what we've talked about is maybe bringing you some more of those, maybe to coincide with the hand down days. So the justices over the course of the balance of May you some more of those, maybe to coincide with the hand-down days. So the justices over the course of the balance of May, the month of June, probably that's it. Although who knows? In theory, they could go into July this year because there's no pressing need

for them to leave town by the end of June as there typically is. But in any event, they'll be issuing opinions a couple of days a week for the foreseeable future. And we thought we might take to Instagram Live and do some kind of instant analysis of those opinions as they come down, probably in pairs. So we will keep you posted about our plans on that front. Slash real time reactions and hair pulling. So if you'd like to join in, follow us along. Even more unfiltered than the podcast. So yeah, could get more unfiltered. Very real. So if you'd like to stay up to date on those announcements, feel free to follow us on Twitter at Strict Scrutiny underscore or on Instagram,

where we're at Strict Scrutiny podcast, or become a Glow supporter at glow.fm forward slash Strict Scrutiny. We've been emailing our Glow supporters in advance when we do these things so that they can have a heads up. Let's plunge in. So we have a ton to recap today. So we are just finishing the second week of the Supreme Court's unprecedented two week telephone sitting. So we're going to dive into the cases that were actually argued this week. But before we do, I kind of wanted to pause for a second, ask you, Leah. So we're on the other side of this. What are your big takeaways? What did you think about the experience and the format of spending these two weeks in

your living room in your yoga pants listening to the justices? So there were parts of it that I really liked. I really, really enjoyed having the opportunity to listen to the arguments with other people and engage with them in real time as it was happening. I just thought that was really fun. It was a nice community building thing. It made the court feel a little bit more open and participatory. So that I really enjoyed. I did not, however, love the new format of the questions where East Justice only asked a few questions, the advocates responded, and then they proceeded onward. I thought that

really interrupted the flow and progression of the argument, the justices' ability to push an advocate on their position and test the limits of it. And I think it put the chief in an uncomfortable position, though I think he tried to do his best as far as even handedly administering the time limits. I did not think that format did the court any favors as far as figuring out these cases? Yeah, you know, I agree with that. I liked a lot of it. I did. I really did like the ability to like actually do yoga, usually during the arguments, like no one can see you when you're in your living room listening to the arguments. I found one thing sort of disconcerting. You know, I listen to a lot of arguments anyway. We all do, but typically not live. So when we're listening to the arguments that are released after the fact, we can, you know, pause and rewind if our, you know,

like if your mind wanders or you want to, you know, listen to something again. So I kept going like to rewind, but of course you can't do that in real time. So you actually have to be pretty focused. Maybe I should have been doing less yoga. But I did like, I totally agree with you sort of being on Twitter and getting some real time reactions I thought was interesting and valuable and even fun. And I also agree with you that there are real limitations to the format. And in particular, the fact that they proceed in seniority order, they didn't really find a way to engage with sort of different lines of questioning raised by different justices sort of through the advocates the way they obviously do under normal circumstances. It was much more this kind of

seriatim posing of questions that were mostly unrelated to the questions that came before and after. And then additionally, the way the seniority falls, the kind of bookends of the chief and Thomas beginning and sort of setting the tone of the arguments, and then Gorsuch and Kavanaugh bringing up the rear, I thought kind of gave their lines of inquiry sort of outsized importance. You had the more progressive justices and the Justice Alito packed in the middle. And just atmospherically or something, it felt like that might have had some effect on the way you said that you came away. You came away from the arguments thinking kind of front of mind. So all this to say, like the benefits of this, I think, could be preserved and you could just mix up the format a little bit. I don't think it would be that difficult to have the justices.

We talked about this before they embarked on this experiment, have them raise their hands the way, you know, we all do in Zoom meetings these days to indicate interest in the chief and let the chief play traffic cop in a way that, you know, just allows for a little bit more kind of fluid exchange between the justices and the advocates. You know, who knows? I have no predictions about the likeliness that this will endure. I mean, it could well be the case that in October, we're still in some kind of quasi lockdown in a lot of the country. And if that's the case, I think they'll hear arguments in October under similar conditions. But I hope they'll play with the order a little bit if they do. I agree. And I think we'll talk about how that format really kind of had some particular consequences that we observed in the presidential immunity cases. Totally. So the first argument that we observed in the presidential immunity cases.

Totally. So the first argument that we heard this week was McGirt versus Oklahoma. Do you want to start by giving a little overview of that case? Sure. So Melissa and Jamie briefly previewed it last week, but in brief, the question in the case is, are the boundaries of the Creek Reservation within Oklahoma, which were established by treaty, still intact, or has the reservation been disestablished? The implications of that

question are whether the state of Oklahoma can prosecute members of the Creek tribe for crimes that were committed within the bounds of the reservation. If it is a reservation, they cannot. If it isn't a reservation, then they can. So the argument, kind of two things that I just wanted to flag about this. One is something happened that I never thought would happen in this new format. And that is Justice Breyer passed when it was his turn to ask a question. So that was fascinating. And it came relatively fast on the heels of Flushgate, right? He is not conclusively, but, you know, very likely been identified as the culprit in Flushgate. And I think sort of after the kind

of public discussion and Ashley Feinberg's, you know, Pulitzer-worthy slate investigative piece, identifying him as the likely culprit, this is the next argument that he participated in. He did, in fact, choose to pass. Do you think there was a connection between those two things? I wondered about it, and it really made me feel bad for him, given that Justice Breyer is one of the nicest human beings on the face of the planet, a persistent optimist who is always willing to look on the bright side. And it honestly pained me a little, this concern that he was feeling shame and embarrassed. So I felt for him a little. I think he's probably largely impervious to those.

That's what I was going to say is like one of the best things about Justice Breyer and one of the reasons why I like him so much is that he can laugh at himself. And one of my fondest memories of the court that, you know, I can't share too much about was an occasion in his chambers where he was just openly inviting, you know, some of the clerks to laugh with him at himself. And that is just, I think, one of the best qualities in a person. Totally. He does like to ask lengthy questions. So for him to willingly relinquish an opportunity to do that was at least eyebrow raising. Yes, it was. The other notable

thing about this case is that it is unusual in that we kind of know who the swing justice is in advance. And the swing or median justice here is Justice Gorsuch. And the reason we know this is the court previously had on its docket from last term, Carpenter versus Murphy, a case presenting the same question. But that case was heard by an eight-member court because Justice Gorsuch was recused. After that case was argued, the court invited the parties to brief additional questions. Those questions obviously weren't sufficient to resolve the case because it granted McGirt and set the case for argument this term, thereby leading everyone to think, well, the justices were divided 4-4 and Justice Gorsuch was needed to decide it. And I think that the argument confirmed that this was also the

advocate's impression of the case, given that Ian Gershigorn, who was representing McGirt, stood up and his opening statement to the court referenced Justice Gorsuch's opinion in Ramos. He pointedly framed the question as, are you going to adopt the state's concern for all the practical consequences that could result from this and ignore the plain text? And so a lot of the argument was framed, I think, in a way that was designed to appeal to Justice Gorsuch, both the at least to some justices seeming to dictate one result, but concern about sort of the kind of potential, you know, upheaval or chaos that would result from finding that the significant chunk of land is in fact a reservation that this treaty is intact, was not just for Justice Gorsuch, but it seemed like a kind of tension for a lot of the justices that they were interested in surfacing in their questions. Yes, absolutely. Given that after the statutes

were passed that purportedly, you know, disestablished the reservation, there was a good amount of historical practice that suggested, you know, the state was not respecting the sovereign territory of the reservation and its sovereign authority. And so the question is, well, how do you weigh that kind of historical practice against the fact that the text of this statute doesn't appear to disestablish the reservation, combined with the practical consequences of holding that the reservation is still intact? You know, two things I wanted to reflect on in the argument. One is a lot of the argument in the case has been focused on what we were just talking about, namely the practical consequences of saying the reservation is intact. But I think what has gotten lost is the practical consequences of ruling that the reservation is

no longer intact. And I thought that the lawyer for the Creek Nation, Riaz Kanji, did a really wonderful job highlighting all of the ways that the tribe is participating effectively in delivering important public services and social services to the people of Oklahoma. And if you yank out and yank away their reservation status, then they might no longer be in a position to do that. And so I thought that that was a really important moment in the argument that he was able to get to. Right. The point there seems to be that there's going to be that you can't avoid having some impact with a ruling one way or the other. And it's in some ways disingenuous to suggest that, you know, finding that this, you know, either there never was a reservation or it's, you know, it no longer exists, would leave intact a status quo. But a finding in the reverse direction would

lead to this massive upheaval actually isn't sufficiently sensitive to the realities on the ground, which are more complicated. Yes. And then the second is, as it relates to this kind of subsequent practice, after the Oklahoma's Enabling Act was passed and so on, as I was noting, after that act was passed, there is a pretty clear historical practice of states not respecting tribal authority. But then the question is, like, do you give credence to that historical practice if you think that states are running roughshod over tribal rights and are doing so for fairly racist, xenophobic reasons? And the justice that appeared to grasp this was the key justice, Justice Gorsuch. So let's play a clip of that here.

At least in the briefs, you make a lot of later demographics and evidence about what's happened. I guess I'm struggling to think why that should be relevant in an interpretation of statutes from the last century, especially when later demographic evidence sometimes shows nothing more than that states have violated Native American rights, including Oklahoma's, for example, enforcement of its state laws on tribal lands against tribal members in the past. So did this line of questioning from Justice Gorsuch, did this link up to a decision in Ramos to you? Like, what did you think about that? It did. You know, it suggested two things

that I think were consistent with Ramos. One is, you know, in his view, when the text is clear, the concern about the practical consequences is just less important to him. And second was his attention, even in Ramos and apparently here, to the racial backdrop and racist history of the underlying state law or historical practice that's implicated in a given case. Okay, so you're obviously not ready to jump on like woke Justice Gorsuch train, but like there is some there's some indication that he is at least interested in considering the significance of history. And in fact, but you know, the history,

if it's sufficiently problematic, history isn't a gloss that like makes a practice permissible and somehow makes it harden into law, right, but actually can kind of undermine the lawness or make us look more skeptically on the degree to which like a practice should be given the kind of force of law, if that makes sense. Definitely not ready to go full on yet. But he is more comfortable than say someone like the Chief Justice or Justice Alito with discussing the prospect of racist history. He does not seem to think that his commitment to civility precludes him from discussing racism and racist history in a way that, you know, it seems like the chief justice and Justice Alito do. So maybe one more thing to flag, and this is something that Jamie and Melissa mentioned when they previewed this case, which is that there's a new argument that Oklahoma has brought that they didn't actually make in the Carpenter case last year, which is basically that there was a never never a reservation here to begin with.

So they don't even have to show disestablishment of this reservation. And I guess I didn't think there was a lot of interest in that line of argument from the justices, but I didn't know if you thought you discerned more potential interest. No, I don't think so. Oklahoma was saying, well, they're a dependent nation, not a reservation. But several of the justices pointing out that the leading kind of treatise and commentator, Felix Cohen, suggests, well, no, all dependent nations are also reservations. There's no meaningful distinction between the two. And so, yes, I just don't think that that argument seems to get a lot of traction. So the next case that was heard the same day is Our Lady of Guadalupe School versus Morrissey-Beru. This is a case about what is known as the ministerial exception. So basically, this is a legal construct, which basically says there's an exemption to generally

applicable anti-discrimination laws for certain personnel working within churches and other religious institutions. And the basic idea is that you can't ordinarily hire or refuse to hire or fire someone simply because, say, they are Catholic. But if we're talking about a church which is looking to hire a priest, we're not going to tell the church that it has to consider individuals of other faiths, and we're not going to call it discrimination of an unlawful variety if it chooses to hire a Catholic person for the job of priest, right? So that is pretty straightforward and, for most people, unobjectionable. But where things get trickier is when we're talking about employees other than ministers, priests, right, who work for religious entities or entities that are in some ways religious, whether we're talking about churches or other kinds of institutions. And here we have a case that presents this kind of potentially more borderline scenario. So basically, there are two teachers in parochial

schools who claim that they have been discriminated against, one on the basis of age and one on the basis of disability, and filed lawsuits after having been terminated. And these schools said that these suits were barred by this ministerial exception. So there's a 2012 case, Hosanna Tabor, which makes clear that it is sometimes the case that employees beyond just like, you know, those who preach the faith, priests, ministers, things like that, may be covered by this exemption. But the plaintiff in that case was a teacher but was also an ordained minister. So they were able to kind of, you know, they sort of set forth some factors for determining when an employee may qualify for the ministerial exception. And those involve things like they involve the title of the individual, but also their kind of function. And those involve things like they involve the title of the

individual, but also their kind of function. And there's a few other factors to consider. But here, I think the question is how that test applies to these employees or if it has to be modified or sort of further defined. And of course, it's a different court than it was in 2012. And that too may be significant. You know, that's a multi-factor test that the lower court applied. And when the cases were originally granted, it seemed like the petitioners were advocating for something like a clearer, more bright line, all encompassing rule. Particularly, the petitioners seem to have a view that while all personnel is policy, that is anyone who is employed by a religious institution is in some ways a religious actor, and therefore these anti-discrimination measures can't apply to anyone employed by

a religious entity. But almost immediately at argument, the petitioner retreated from their view in response to a question from the Chief Justice. And they only proceeded to retreat further when Justice Kagan got the mic and announced that she had a list of hypotheticals. And I think the introduction to her list was a little terrifying. So let's play how she previewed her list of questions. and then some of the questions she asked. Mr. Rothschild, I have a too long list of hypotheticals. So I'm hoping that you can answer them in just a few words, like basically, yes, he qualifies. No, he doesn't qualify.

So here's the first one. A math teacher who is told to teach something about Judaism for ten minutes a week. And if he's teaching it devotionally? That's all you know about him. That's all I know about him. Then I would say probably not, it would be de minimis. Okay. A math teacher who comes in and you mentioned the Shema at the beginning of your remarks, a very important pair, takes about 20 seconds to say, a math teacher who was told to begin every class with a leading the Shema.

I don't think that that is likely to fall within it because I think it would, again, be de minimis under the data. A mass teacher who is told to embody Jewish values and infuse instruction with Jewish values. If it's that alone, probably not, but it really depends on how that cashes out in actual practice. Okay, I really am asking these things alone. A nurse at a Catholic hospital who prays with sick patients and is told otherwise to tend to their religious needs. I think a nurse doing that kind of counseling and prayer may well fall within the exception. May well fall within it, okay.

Yes. A press or communication staffer who prepares press releases for a religious institution of all kinds that they need. That should fall within it because of communication under Alessia Hernandez's case from the Seventh Circuit. Okay. A counselor at a church-affiliated rehab clinic who urges his patients to reconnect with their

faith community? That would be a probably, but it depends on how much connecting there is. Okay. An employee at a soup kitchen who distributes religious literature and leads grace before meals. My guess is that that would be de minimis under the same kind of rubric as the Davis case

that I mentioned earlier. Okay. A church organist who provides musical accompaniment and selects hymns for services. I think that that usually would fall within it because that's an important religious function, and that's the main job. Okay. A cook who's actually not Jewish but who prepares kos prepares kosher compliant meals for children at a Jewish school. No.

No. Okay. You got through them all. Thank you. So, you know, her hypotheticals were designed to tease out some of the odd consequences of applying petitioner's rule that all personnel is policy and that you can't apply an anti-discrimination statute to anyone employed by a religious entity. And I think the implications of that are particularly clear when you start to move beyond religious schools and start to think about, well, some hospitals or major medical institutions, they are also religious entities. So can you not apply anti-discrimination statutes to provision of health care services and other things like that? And again, petitioners seem to think that once they got up, they could prevail under a narrower test. And it's not clear that all of the justices were OK with petitioner changing their arguments, given that both Justice Gorsuch and Justice Kavanaugh,

after Justice Kagan got finished with petitioner's counsel, immediately sought to resurrect petitioner's broader position by saying, well, isn't it a problem if you're asking courts to make these kind of employee by employee determinations? Yeah, but I will say that, God, she was just, Kagan was masterful in that colloquy, wasn't she? It was like a classic law professor string of hypotheticals. Yeah, really. And he really was, to his credit and maybe not always to the benefit of his argument, really quite responsive. But it was a very significant, as you said, retreat from a more absolutist position. But he certainly seemed to be suggesting we are not arguing that every employee

of a religious institution is necessarily going to be exempt from anti-discrimination laws. And that was pretty significant. Right. And I thought that that was an example of how a justice could accomplish something in this new format, namely by only asking super short questions to which there was a yes or no answer. And she instructed him at the beginning, like, I only want you to say yes or no with a brief explanation. And so that string of hypotheticals was able to get out something quite useful. Yeah, she's, you know, she I think probably was, I mean, I think she's probably the most effective in person as well. But I think she was the most able to adapt to this new format and not, you know, get asked compound questions that gave advocates the opportunity to select the more advantageous one to answer. And yes, to sort of to have and I mean, you know, she seemed to come in with this pretty scripted list of hypotheticals. And that's, I think, a good way to use, you know, the less than

two minutes, I think that each justice got at least that first line of questioning. So Gorsuch and Kavanaugh, as we said, like they sort of get to play cleanup in some of these arguments by virtue of their going last in the questioning. And they seemed less than enthusiastic, I thought, about the advocates seeming retreat to this much more kind of modest position. Yes, no. And they were also dissatisfied when the Solicitor General, as amicus, got up and was also proposing not a total rule, but a more case-by-case analysis. And this is potentially something where the structure of the questioning format, where the junior justices get to go last, could matter, given that they were the ones who got to leave the last impression about which is

better, the kind of narrower case-by-case rule or the broader all-encompassing one. But I don't know. It seemed like Justice Gorsuch and Justice Kavanaugh and Justice Alito and Justice Thomas were pretty enthusiastic about petitioner's very broad rule. I don't know that I got a great sense about where the chief came out. But, you know, it's a little bit hard to note there. But one interesting dimension about this case to me is just, well, what is going to end up happening as a result of petitioner, I think, changing their argument after the briefing was complete and once they got up to the lectern. Because we've already seen this term, the court dismissing as improvidently granted

a case, IBM versus Jander, where a petitioner changed their briefing from the cert stage to the merit stage. This is a little bit different given that it happened after the merit stage briefing, but that argument, but that's not great either. So I don't think the court is going to end up digging the case, but I don't know what's going to happen given that they, it's clear the petitioner kind of modified their position. And given that the court just last week in Sinanang versus Smith effectively remanded a case to the Ninth Circuit on the ground that the Ninth Circuit injected an argument that the petitioner was no longer – that the petitioner hadn't advanced. And, I mean, that case was just absurd.

And that also happened in McGirt, as we noted, where the court in Carpenter v. Murphy last term invited supplemental briefing on questions. Exactly, that the parties didn't advance. In the tax cases we're about to talk about, they asked for political question doctrine to be briefed. No one had argued the political question doctrine. I mean, that was quasi-jurisdictional, but like courts do this all the time. And it was just fairly ludicrous for, you know, it was gratuitous. Yeah, yeah, no, absolutely. Here, I think because the SG has made a similar argument, right, that is this kind of more measured argument, sort of deciding to align yourself with an argument that's present in the case is the kind of thing I can't see that justice is coming down too hard on. But, you know, you could see a couple of like snide remarks in an opinion that note the change in position potentially. Yeah. And I think that the structure of this case is something that at least I want to come back to when we get to the immunity cases, which is the participation of the SG as essentially arguing for a less radical, but effectively or practically similar version of a party's argument really gives, I think, the SG's position a boost because it makes

them look less radical and gives their position the appearance of being the median position or compromise position when in fact it is actually quite a striking departure from existing law. Totally agree. So anything else on that case? No, I think let's keep going. Okay, so before we go on to the immunity cases, I wanted to give a special shout out to the winner of the strict scrutiny shout out prize from Michigan Law's public interest auction. Now graduate Jacob Muller and the entire Fid House, a Michigan Law institution and home to the one and only Hetali Lidaya. Detroit is lucky to have you as a clerk next year. Hetali, Go blue. Also from Jacob, shout out to all the 3Ls who had their final semester cut short and won't get the chance to graduate properly. He misses you and is very grateful to be going through this with such strong and amazing

people. The celebration will mean twice as much when you all get to be in person together again. Also, Caitlin Nelson and Jessica Ogden at Berkeley Law, despite not being Michigan students, I hear you are pretty awesome. Thanks for listening. Obviously, I had to do this when Melissa was not on the show. Jacob has one last request, and that is to donate to Al Otrolado, a group serving indigent deportees, migrants, and refugees in Tijuana and Los Angeles. You can do so at alotrolado.org. That's awesome. Props to Jacob for including that donation suggestion in his message. And that's a great idea. So you auctioned this off at your

public interest auction? I auctioned it off as far as the public interest auction. I auctioned off some schwag, but not a shout out on the show. You should do it. You should do it. I got to do it next time. Awesome. OK, so let's move on to probably the biggest group of cases that we'll talk about today. And these are the presidential immunity cases or tax cases or sort of big presidential power cases. You know, in some ways, I hate the sort of tendency to refer to them as the tax cases because I think they are about the president's taxes, but they are much more significant

than that. And the principles at stake are much broader than that. So, you know, we've talked about these cases enough times that I think we shouldn't belabor them now. So it was just a reminder. These are three cases all involving subpoenas directed to financial institutions seeking records that include the president's taxes. So there are three congressional committees that have issued subpoenas. And then there is a grand jury subpoena from the Manhattan grand jury. So D.A. Matt and D.A. Cy Vance and his team have been investigating various conduct related to Trump org and the president. And there's a far ranging investigation. We don't really know the contours of, but we do know that they have issued subpo up to leak details of the grand jury investigation. So despite Justice Alito's all of a sudden, I think as you pointed out on Twitter, the first time we ever hear Justice Alito go real hard after a prosecutor is in this case,

when he's when he is essentially suggests all ADAs in Manhattan are on the phone with the New York Times all the time. So we'll get to that in a second. But, you know, the cases were argued separately. First, you have the congressional subpoena cases and then the New York cases. We'll discuss the congressional subpoena cases first. And we should say, right, that Trump's represented by his personal lawyers and DOJ has been amicus in these cases below.

And the committees have won in the lower courts and the Manhattan DA won in the lower courts, too. Yes. The morning of the arguments, the Wall Street Journal came out with an op ed that I felt somewhat personally attacked by. So their op ed came out on the side of the president on the ground that Congress did not have a legitimate legislative purpose in the subpoenas. And they noted in the op-ed that we've argued, including last year in New York versus Department of Commerce, that judges shouldn't probe the possible political motivations for official actions. But here, Democrats are transparent about targeting the president. That is the census case. And the idea that courts should have allowed the Commerce Department to add a citizenship question to the census because there is no basis to probe the motives there, but there's a basis to probe the motives here is galling.

I mean, OK, whatever. Yeah, it did feel a little like the journal editorial page was subtweeting you just a little bit, Leah. And I just wish they had included a specific reference to you. And I would say I keep waiting for you sort of Leah Lippman and the sort of necessary to enforce the Voting Rights Act meme to make the jump from Twitter and social media to The Times or to The Post or to the journal. And that's not it. I know it'll happen someday. I'm still focused on it. You still are focused on it monomaniacally and correctly. I actually do cite the meme in a law review article that I have a draft right now that I should probably send you a draft of. So at least it'll have made that jump, but it'll make the jump soon.

Subpoena cases. Yeah, so first, the congressional subpoena cases. So many things to flag. I mean, a few top line things. You know, the president is extremely fond of the phrase harassment and presidential harassment. And you have noted that it was really disconcerting how many times that word was used in the oral argument. Any guesses about who used it the most? Justice Ginsburg constantly. Constantly. Can you imagine? OK, not the guess I was expecting. argument um any guesses about who used it the most justice ginsburg constantly okay not the guess i was expecting not the guess i was expecting

oh god it was woke lito who's so concerned about you know um congressional subpoenas against the president um but after him was assistant to the Solicitor General Jeff Wall, again, showing that there's not necessarily that much daylight between DOJ's position and the president's, you know, when you kind of get down to where the rubber hits the road, and the chief justice. I think we're going to go sort of sequentially through the advocates, right? Because there's a lot to say about each of them. But before we do that, so who did you think was in play in this argument? Like what justices seemed, you know, obviously Justice Alito's like constant invocation of harassment sent a pretty good signal about where he's likely to come down in this case. But, you know, who was in play? I would say, if anyone, it's the Chief and Justice Gorsuch.

Both of them asked questions along the lines of, why shouldn't we defer to the House's stated purpose about what the purpose of these subpoenas is? How are courts to determine when a legislator doesn't have a valid purpose? What do you want us to do? Depose them? And so those questions to me suggested that they had concerns with the president and DOJ's position and were therefore in play. You know, one thing actually in the other direction, Justice Breyer sort of later in the argument seemed potentially receptive to the idea that there was potential for harassment here, right, of this president or other presidents. And so he too, I thought, could be in play in that his vote is not, I didn't feel certain of his vote coming out of the argument.

Yes. So Justice Breyer asked a question about, well, aren't these subpoenas kind of broad? Don't they potentially ask for too much information? And then Justice Kagan asked a question about potential differences between the subpoenas, suggesting that perhaps the subpoena from the Intelligence Committee, which we'll get to in a second, might be valid when some of the other subpoenas might not be. But those questions came after the Solicitor General's argument, the present personal lawyer's argument, and after an initial round of questioning of the House's lawyer, Doug Letter, who, as we'll get to in a second, I think gave a stunningly disastrous performance. And so I took those questions to partially be reflective of what I thought was a real turn in the tide of the argument after Doug Letter got through a line of questioning. Because before he got up, it seemed like the tide was perhaps toward the House. So the president's personal lawyer, Patrick Strawbridge, was up first. He came out swinging, right?

Not surprisingly. And, you know, what did you think in general about his performance? It was smooth, but he was stunningly non-responsive to a bunch of the justices' questions. Part of that was, I think, a problem with the fact that the justices were asking him multiple questions and compound questions, which gave him the opportunity to basically pick and choose which questions he would respond to. But for example, he didn't answer a question about whether the Intelligence Committee can investigate possible conflicts that the president had. And I think that that is

honestly the most compelling subpoena and the most pressing need for a possible subpoena into unknown information in the president's personal capacity. He started off with an answer to the chief that was like, well, I don't know if the House could ever subpoena any personal papers of the president. And I mean, if that is your kind of initial offering to the court, like you're already starting out on a very extreme position. And so I just didn't think substantively he was that great. He never really got around to answering Justice Breyer's question about whether all the Watergate subpoenas would be unlawful. So, you know, not a great substantive performance, I would say. Justice Kagan, again, will probably continue to extol the talents of Justice Kagan as a questioner. But, you know, he took the position Strawbridge did repeatedly that these subpoenas go further than has ever than any subpoenas have ever gone before. And she took real issue with

that. Yeah. I mean, I think some former presidents might contest the idea that this these subpoenas go further than has ever gone before. And this gets me back to what Justice Breyer has said, is that, you know, these subpoenas are for personal records where the president is just a man. You know, so she is drilling down in this distinction that was so important in this case and that it seemed to me that, you know, that Strawbridge maybe wasn't deliberately trying to obfuscate. But the sort of suggestion throughout is that, you know, of course, these are the president's personal papers. But there is this kind of commingling of arguments about, you know, kind of the president's official functions and these documents, which have nothing to do with those official functions.

And I thought that, you know, Justice Kagan sort of saying and letting it hang there. When we're talking about these records, the president is just a man, right? These are the business records of a man, a man named Donald Trump, a man with an organization and a real estate empire. And they have nothing to do with what President Donald Trump is spending his days or his administration doing. And, you know, I found it frustrating that that line, and in part because of the format, perhaps, wasn't able to get more traction. I think that that's right. And he just kept turning it around to say, well, the fact that these are personal records makes it worse rather than better, which I just think makes no sense at all when your entire claim about why these subpoenas can proceed is because they interfere with the office of the presidency. But he just never got pressed on that, I think, because of the format of the questioning. He had one moment before we move on from him,

which is my version of your Wall Street Journal editorial, which is an answer that he gave, which maybe let's play it here. It is unfortunate that the House did not attempt to seek these documents directly from the president or engage in any negotiation, but simply ran to third party custodians and forced the president to bring this. One of the things that has the effect of limiting the number of defenses the president can bring. So there are like two things about this answer that just drove me absolutely nuts. So one, the idea that this president or his administration would have engaged in any negotiation is just laughable, right? The posture has been total non-responsiveness and obstruction on the most minute and the largest kinds of requests that Congress has made for three plus years. And so

the idea that there would be a willing participation in any kind of process of negotiation and accommodation is absurd. And it was absurd to say it. And he didn't have to say it. And I don't know why he felt moved to say it. So that drove me nuts. And then the other thing is the sort of inadvertent revelation, he says, the effect of limiting the number of defenses. Right. Actually, that was probably the point. That's why these committees went to these third parties. And guess what? The kinds of defenses that the president would typically bring that would speak to things like executive privilege are completely unavailable. And so and that is why it did. That's why everything felt like it was a sort of kind of bizarro world, which is the arguments, the defenses that a president would typically be able to invoke here aren't available. And so the burden should be on the president to identify some new kind of burden that he can, you know, name and explain. And he just didn't do that.

And yet, so, but Strawbridge, I thought was pretty effective in, and especially was he was aided in the second half of this argument, sort of shifting the burden back to the House, right, to justify its need for these documents, where, you know, subpoenas with an articulated tie to a legislative purpose historically are deemed valid and the burden is on the individual raising an objection or identifying a privilege. And yet all of that seemed inverted in this argument. Yes, I completely agree. So Jeff Wall, I think you said it perfectly right. So in a number of these cases, Jeff Wall is a deputy solicitor general, a very fine lawyer. And he made what appeared to be a more modest version of the argument made by Strawbridge, which is, you know, we're not going to say the president's personal records are off limits always and forever to a congressional committee, but that these subpoenas are, you know, wildly inappropriate.

And, you know, he did, as you said, invoke harassment. And so he certainly impugned the motives and the kind of drafting of these subpoenas, but did definitely stop short of saying no committee could ever get documents of a personal nature from a sitting president or from a third party, at least pertaining to a sitting president. Right. And even though, you know, they weren't taking that absolute position, I still think the daylight between the solicitor General's position and the President's personal lawyer's position here is perhaps not quite so much, given that the position that the DOJ seems to be advocating for as applied to these subpoenas would put a really high burden on Congress for obtaining this information, given that DOJ is essentially saying the President doesn't have to show any burdens whatsoever. Instead, the House has to show that the information is demonstrably critical. They really need it. They can't get it anywhere else. And they need this specific information. And that's gonna be really hard to show in a lot of cases, particularly where the House is asking for information where they don't know what it's going to uncover. And that's particularly true for the Intelligence Committee subpoena, which is about

the president's possible entanglements with foreign companies and foreign government. They don't know what's out there and they want to know and, you know, and so they can't establish they need to know it. Yeah, if they don't know what's there. Yeah. And I mean, you made this point, but I do think that it's in some ways it was unfortunate, both that these congressional cases were combined and that the congressional cases were combined with the New York case because they all do raise kind of distinct issues. Now, the congressional cases raise the same kinds of issues, but the subpoenas themselves are distinct. And there was, you know, a failure to really distinguish between them. I mean, so there's the Financial Services and Intelligence Committee.

Actually, they together subpoenaed Deutsche Bank. And those are the ones that are investigating foreign influence into U.S. elections. And I think that, you know, arguably there's a quite pressing need if framed properly for those kinds of documents, even if you had to make some heightened showing, which I don't think there's really support for in the Supreme Court's cases about the congressional oversight power. But even if you did, I think you probably could make that showing. the case that when this administration is over, whenever that is, Congress would be crazy not to think about strengthening the ethics laws that apply to the president to, you know, compel disclosure of taxes, to compel potentially divestiture from personal holdings. And it

doesn't seem at all a stretch to me to suggest that it would inform their legislative judgment to understand something about the impact of the entanglement of personal finances and policymaking of this administration. I think there's a really compelling case for that, actually. But, you know, there are distinct kinds of cases. And so I think with the exception of Justice Kagan, nobody really tried to separate out the subpoenas in those cases. I think Justice Sotomayor also tried to separate them. But there's

really like two different kind of ways you can think about them. Like one is they're asking the president's personal financial records, because they think the president or his children are representative of a potentially, you know, potential need for generally applicable legislation, right. And so that is, I think, like the ethics kind of basis. But the foreign entanglements one, like that's very different, right. That's not about the need for, you or they didn't use this format to do so. I do think that Justice Kagan got Assistant Solicitor General Wall to basically admit the only burden on the president here is the kind of distraction, right, and possible like reputational harm, which as we'll get to discussing when we get to the New York case, that just can't be sufficient as a burden, because if it was, then you shouldn't be able to civilly sue the president or issue any kind of subpoenas directed to him or his affiliates.

OK, so we should talk about Doug is, I don't know Doug Letter. I have only heard the nicest things about him as a person. I've only heard the best things about the kind of lawyer he is. That being said, it cannot be the case that a nice person who is a great lawyer is immune from criticism when they give a fairly disastrous performance in a major case that could very well turn out to affect how that case is resolved. And I just, you know, not all lawyers are great at all things. I mean, my goodness, like if I was up at the lectern when Justice Alito asked Carrie Dunn, well, isn't it true that prosecutors leak information to the New York Times all the time?

I think my response would have been, well, did you leak information to the Times when you were a prosecutor, Justice Alito? Right? Like different people are good at different things. And maybe Doug Letter was not the person to be doing this argument, given his inability to answer questions and present a coherent theme. Yeah. So we should say that he was a lawyer at DOJ for many years, and then a couple of years ago, moved over to serve as the House's general counsel. And it was a tough argument to listen to. I think my bottom line is his

performance at the lectern was necessary to enforce the Voting Rights Act, right? Like that will give you a flavor of what is to come. So kind of two things that seem to go awry immediately. He did not have an answer to two questions that it seemed like were inevitable that he was going to be asked. One is, give us an example of a subpoena that wouldn't be valid under your test, right? Government lawyers get asked this question anytime a case involves congressional power. The Solicitor General's failure to answer this question in Lopez v. United States about the Gun-Free School Zones Act was cited by the court as a reason for invalidating the statute. Right?

Solicitor General gets asked this question in Morrison, gets asked this question in the Affordable Care Act case. You know it's coming. Why don't you have an answer to it? And there really wasn't any kind of answer there. And, you know, I think it's there, you know, there are lots of ways, whether you're going to supply a specific subpoena or not, to identify the categories of requests that would be off limits. And, you know, things that would impose genuine burdens on the office of the presidency or executive privilege. And he, you know, he mentioned privilege in response to other answers. But things that lacked a legislative purpose.

Though, you know, I think you could certainly have pointed to categories, but there was just this like terrible failure to really respond in any way at all. Yes. And then his response invited additional hostile questioning because his response was, well, if there is an invalid subpoena, courts will be there to protect the president. And then Justice Alito jumps all over this and he's like, OK, well, I'm here, buddy. I'm going to save the president. So why isn't that this case? And it was just, I think, really stunning that if that was a prepared answer, it wasn't thought about. I just didn't know what what the plan was. Yeah. I mean, you know, and Justice Thomas, who in the seniority order followed the chief, posed a couple of additional hypos or just questions, not even really hypos that letter similarly didn't really answer. You know, one, he asked for the first example of this kind of subpoena. And, you know, letter cast about for a little while did mention the Sinclair Sinclair expedition inquiry, which, you know, involved requests, but not exactly subpoena. And, you know, letter cast about for a little while, did mention the St. Clair expedition inquiry, which, you know, involved requests, but not exactly subpoenas,

and then sort of discussed a passage in a case called Watkins that described the history, but without himself actually being able to cite chapter and verse, which I really think in a case like this, you ought to be able to do. And the other question that Thomas posed that he struggled to answer was, he said, give me, – Thomas said give me an example of a legislative power that is implied. And there just wasn't – I don't think he came up with anything there. No, he didn't come up with anything there. And it's not entirely clear what Justice Thomas' question was getting at. hello, have you heard about this thing called the Necessary and Proper Clause? Right. Which, like, allows Congress to enact statutes that aren't specifically provided for in other enumerated powers. And by the way, allows Congress to carry into execution other branches powers, too.

Like, come on. So so you could that would have been one, you know, Thomas likes a textual hook. So say the Constitution itself contemplates Congress doing all sorts of things. It doesn't have enumerated powers to do. And then it occurred to me that he could have just, you know, he could have pointed to most of what Congress does is not specifically provided for in the Constitution. It organizes itself into committees. It holds hearings to confirm people, you know, and to consider legislation. Like there are no hearings in the Constitution. There are no committees in the Constitution. Now, those aren't powers exactly, but I think you could tell a story

about much of what Congress does being not specifically identified in the Constitution and yet perfectly consistent with it. And certainly there is tons of case law from the Supreme Court suggesting that, you know, the subpoena power is a necessary adjunct of Congress's other powers, the power to legislate, but also its other, you know, powers to, you know, to impeach and to appropriate and to confirm and other sorts of things. So, so it's that that was also one that, you know, I'm not saying that I had all the answers to this stuff either. But like you also weren't the House's lawyer who was tasked with preparing for this argument in one of the most important separation of powers cases over the last decade. Not to jump on the hater bus, I'm going to say two additional things.

The over-the-top civility just graded me, right? You're doing that poorly. The need to say, thank you, Justice Breyer. Your Honor, that's a very good question. I greatly appreciate that, Justice Kavanaugh. You're wasting your time. Answer the questions. And then second, he was changing his answers throughout the argument about whether, for example, Congress could subpoena the president's medical records. By the end of the argument, I don't know what his answer to that question was.

It seemed like no for purposes of revising the ACA, but potentially yes for purposes of, you know, revising the ACA, but potentially, yes, for purposes of thinking about the succession statutes. And, you know, maybe, but it seemed to me that a better answer there is that you have to have a really good reason to get medical records for anyone, any single individual. There's no way that that would inform your, you know, your legislation on health care for the whole country. And there really isn't any obvious reason that that there really isn't any obvious tie in my mind to succession statutes and a particular president's particular medical status. So so I thought the clear answer that was no, they couldn't. And yet that wasn't the answer that was provided. Yeah. And then, you know, the chief invites him to close. And this is what happened. Mr. Letter, would you like to take a minute to wrap up?

Your Honor, I greatly appreciate that. I'm sorry, just flipping back to my notes. I apologize. Again, you know, we all have bad days, but just the repeated failures in this argument to show that he had prepared questions or answers in response to extremely anticipated questions was really, I think, troubling. One exchange made me really cringe, and that was when the chief told Doug Letter, after they finished their first round of questions, the following. Thank you, counsel. Mr. Letter, I know you will be delighted to learn that we have time for additional questioning. This made me cringe for a few reasons. One, it was just obvious everyone knew this was going really poorly, right? And the chief's question and tone reflected that.

Second is it brought back memories for me about the chief justice's exchange with then Solicitor General Don Verrilli in NFIB versus Sebelius in the Affordable Care Act case. Verrilli mostly wins in NFIB. So it is sometimes the case that an argument that feels like it is going poorly doesn't necessarily predict the outcome. Although I do think that both you and I came out of the congressional cases on Tuesday feeling like there's no way Congress gets a clean win. Absolutely no way. You know, I don't I don't think despite the justices, I thought frustration with the House's failure to draw limits. I don't think they're going to completely eviscerate Congress's oversight power in an opinion in this case. I think it would be very unlikely. I didn't sense a lot of appetite for that. But I do think that the idea that these

committees will get the documents subpoenaed here, at least in the short term. Now, I think it's possible that, you know, the court sets forth some new standard with some heightened showing required, you know, along the lines of the argument that Wall was making when the president or his papers are involved and the lower courts then just have to take another look at these subpoenas in light of that newly articulated standard. And I think that would be a problematic development for the legislature's ability to conduct meaningful oversight of the president. But if they frame it narrowly enough, then it shouldn't impact things like subpoenas

to executive branch officials other than the president. Although, of course, we may soon find that the courts are going to decide there's no standing to enforce those anyway. You know, we should say that that question is not implicated in these cases because it is not Congress trying to enforce its subpoenas, but the president intervening to block compliance with the subpoenas. And that was one thing that was interesting that came out, like that, you know, the lawyer of the president's lawyers confirmed that these third parties are happy to provide the documents. They view this as a dispute between Congress and the president. And absent some judicial directive not to comply, they view themselves as bound to comply with, you know, legal directive, a subpoena from Congress. And I just

worry about what the court does here, kind of eroding those norms and expectations of compliance with congressional subpoenas, both on the part of other executive branch officials and third parties. Yeah, I don't want to frame the court's adoption of a president specific standard, though, as even reasonable or remotely based in the law or a win. So I just want to underscore that like judged against the current state of the law about Congress's subpoena power, and particularly the historical practice of subpoena power, when weighed against the fact that the office of the presidency has become increasingly powerful and congressional oversight is increasingly needed. I think the court's decision adopting the Solicitor General's position that you need this kind of demonstrably critical

showing that you need this particular information demonstrably critical showing that you need this particular information would be a real blow and a real loss. And it also just to take one more beat on this, it seems possible to me that when they sit down to write the opinion that has to explain why it would be so unfair and burdensome to the president to allow a subpoena to be enforced against a third party where the president has to do nothing and see nothing and it might like stress him out or worry him like that's not a constitutionally relevant burden it's it seems possible to me that again despite the general tenor of the argument that they will not be able to with straight faces write an opinion that recognizes this kind of burden. I mean, nobody is really.

Two quick follow up questions, Kate. One, you remember Shelby County versus Holder. And two, do you remember the dissent in the census case where the justices in the dissent accused the majority of being conspiracy theorists for thinking that the Department of Commerce didn't add that citizenship question to enforce the Voting Rights Act. I mean, this is the world we are living with. You know, I love it. I'm so glad to have your optimism. Well, I continued. I mean, look, I guess what I would say in response is, you know, maybe there's a journey. Maybe there's a John Roberts journey between Shelby County and New York versus Commerce, because it's not the same John Roberts who writes Shelby County, which is an abysmal opinion. I obviously I fully agree with that. And, you know, the weird and problematic and internally inconsistent, but bottom line, correct opinion that he writes for the court in New York versus Commerce. That's the praise our optimist is able to give the census

case, I'm just not sure. I mean, have you ever read it? It just makes no internal sense whatsoever. And yet, at the end of the day, it does not give a pass to this egregious conduct. And that is important. It's something. It's something. All right. So let's maybe we'll briefly do because we're already running along. We'll briefly cover Vance, which I think we do both feel slightly more upbeat about than the congressional cases. So most of the justices did seem really focused on the precedent here, which is really hard for the president to overcome. Both the Nixon tapes case from 74 and Clinton versus Jones from 97, both of which involve direct requests to the president, where the president would have to do a lot, right? Both reveal his internal conversations in the Nixon case, actually participate in responding to civil litigation in the Clinton case. And in both cases, the court unanimously finds that, yeah, there's a burden and maybe you have to be accommodating of his schedule.

But the fact that he's a president doesn't mean he is beyond the reach of the law. And in particular, Clinton has to rule out the possibility that the prospect of embarrassment or distraction is not sufficient to require some heightened showing for a lawsuit or a subpoena to proceed. Because if it were, then that lawsuit, right, which alleged sexual harassment, should not have been able to proceed. Absolutely. And no one is challenging Clinton as precedent, right? No one seemed to be saying that Clinton versus Jones was wrongly decided. I mean, I was actually sort of wondering whether there would be sort of gestures in that direction in the oral argument. And, you know, maybe I missed them, but everyone seemed to be operating within the confines the oral argument. And, you know, maybe I missed them,

but everyone seemed to be operating within the confines of that opinion. And maybe there was some kind of revisionist history about it. So Alito, remember, sort of poses the question, you know, or seems to suggest kind of snidely, well, the sort of prediction that it wouldn't be a lot of, you know, distraction or wouldn't use a lot of the president's time. How is that? How did that sort of play out? And I thought the lawyer for the Manhattan DA's office, Kerry Dunn, extremely effectively said, yeah, that was basically right. Like the litigation itself was pretty trivial. His lie in the depositions then set in motion impeachment. But the civil litigation being allowed to proceed didn't impose any kind of burden on the president. So the court was actually basically right, which I, of course, it's a Stephen's opinion. I appreciate hearing that. I myself have wondered about that kind of prediction, but I like a retreat in the same way that the ministerial exception case involved a retreat. But he did sort of say, well, look, we, you know, he said, look how reasonable we are. We didn't try to get a preliminary injunction to stop the entire grand jury proceeding. All we're doing is trying grand juries investigate. They can meet. They can have lunch. We're not trying to enjoin that. But no. So it is a very broad position that they are taking, which is that basically this temporary presidential immunity, which, have invented? There is no authority for it. It is something they have just invented in this context. There are other kinds of immunities that have to do with the president's performing of his presidential job, the president presidenting. Now that the president is committed to enforcing the Voting Rights Act, he needs to avoid the distractions from these grand jury subpoenas.

This case got a little bit more into the specific burdens on the president. And there was this remarkable statement by the president's attorney about what the burdens in this case were. And I want to play that clip here. And Justice Breyer is rejoinder to it. That burden is being met just by us being here. But to require the president to have to bother to appear before you in this litigation, which, you know, I don't think is that compelling of a burden when you're talking about the office of the presidency. Then we get to Solicitor General Noel Francisco, who,

you know, as with the previous case, a Solicitor General is essentially arguing for a less broad rule than the president's personal lawyers are. So he's basically arguing, you know, it's pretty similar to the SG's argument in the congressional cases, there needs to be some some kind of heightened showing on the part of these prosecutors, some demonstrated specific need. But, you know, to call back your earlier point about the kind of sort of facade of reasonableness that these sort of quasi moderate or middle positions that DOJ is taking sort of offers and then sort of what really lies beneath that veneer. I mean, I thought there was early on in the argument, he has asked about the sort of space between the SG's position and Sekulow's position. And the briefs did seem to, I thought, suggest there was some real space between them. But I thought Francisco's answer to that question seemed to

say we actually really like Sekulow's argument. We love it. We take absolute, but, like, we don't think you have to go that far, given that we don't think there's a special need here. It was just like, it almost suggested that this whole thing was a charade and that, look, we're supposed to, you know, be this institutional player, we have this Lister General's office, and so we have crafted something that is mostly designed to give you an opportunity to decide less sweepingly. But if we're back in front of you and, you know, there's this special need test that the lower courts have used and some decision has been made that these subpoenas do satisfy them, right? They still get to, you know, these are still valid subpoenas.

They've, you know, the demonstrated special needs showing has been made. We might well be arguing for some absolute temporary immunity. And that was, I thought, implicit in Francisco's answer. And it was so disheartening. It just suggested this whole thing was this charade in which the court, you know, that's really a waste of the court's time. If the SG thinks that the president truly thinks that it is a correct proposition of law, that the president has absolute immunity. The president's accounting firm has absolute immunity. The president's accounting firm has an absolute privilege from responding to subpoenas involving the president in some fashion. It's almost too absurd to articulate because it isn't presidential immunity. It is the president's

accounting firm's immunity. And if that's what the sg's office it's like do do these super rich presidents get a pass right like that is what they are arguing for right that's and i mean and you can imagine like anything the president has touched any of his businesses any of his kids businesses i mean you can i'm not even sure where if this immunity does exist again again, it's an invented idea. Like it doesn't, it hasn't existed before if they decide to create this opinion. It could be really an expansive exception from the kind of rule of law that the president and these kind of concentric circles that emanate out from him, which in his case do involve a lot of businesses and a lot of other people. You know, that's just like, it's a that's a huge law free zone that the court would basically be creating. And and it just felt like

in this exchange with Francisco, he was basically on board with that, just didn't think the court needed to do it in a one step rather than like a two step process. And and I found that difficult. Yes. We've talked about the burden on the president. And you mentioned Justice Kagan's question kind of pointedly framing this question. Justice Ginsburg, however, in several, I would say, like backhanded snide comments referred to the lack of burden in this case compared to others. So let's play a clip of one of her exchanges here. As far as the impact of the president is concerned, I think there's no case more dramatic than the Nixon tapes. Devastating impact on the president. He resigned from office. Yet that was OK. So I really don't get it.

Yeah, I mean, and it's pretty clear, right, the burden on Nixon, the burden on Clinton are dramatic burdens and that and yet those subpoenas are permitted to stand. And it's hard to see how without really hollowing out what those cases stand for, the president could possibly win here. So I don't see that happening. I don't think it's impossible that the court could try to do something, again, to dodge really squarely resolving the case, to send it back and say, like, maybe not quite this sort of really heightened showing the SG is asking for, but maybe lower courts take another quick look and just make sure there's been sufficient sensitivity to the kind of the fact that the president's accounting firm is involved in this case or whatever they're going to say. It would be absurd. And one thing that I think, you know, we'll now start talking about Kerry Dunn did really effectively is by repeatedly pointing out that he should win even if the court adopts the Solicitor General's position.

Because as he pointed out, the lower court effectively decided this case under, you know, well, this particular subpoena, you don't have to make a heightened showing. But also the president has made no affirmative showing or any argument that the office is going to be burdened. This was an opinion by Judge Katzmann on the Second Circuit, who is just extremely thorough and careful. And so he really does go through all of the arguments and says, like, there's just no colorable argument for anything besides distraction or embarrassment in this case. And so that's the end of it, I think. Kerry Dunn, who I believe was arguing before the Supreme Court for the first time, he's the general counsel of the Manhattan DA's office. And, you know, he was a law firm partner for a lot of years and I think then came back after like 30 years at a firm to the Manhattan DA's office, which I think is very cool.

Like if you're going to spend your career at a big law firm, like, you know, when you're done partnering, go spend a few years in a local DA's office and like you could get to do a very cool case like this. So, you know, and he was just like he was I was really surprised to learn that this was his first Supreme Court argument. But he was a pro. He was unbelievably prepared and precise and smooth, like but not slick, like just like really, really smooth and easy in his exchange with all the justices. And then also very, you know, there was a lot of kind of in the trenches detail about how a local prosecutor's office does its job, right? Like it's, he talked about grand jury secrecy. He talked about, you know, grand jury secrecy is something that every state, you know, there was this kind of question, well, you know, because the justices who are skeptical of this subpoena were concerned about the fact that there were 2,300 local DA's offices and, you know, couldn't there be this, you know, sort of cascade of investigations that could tie the president or his firms up or whatever. So couldn't opening the door to this subpoena mean that all of a sudden thousands of other

subpoenas would quickly follow? And he was just sort of he was kind of dismissive about that, right? Like this is this is a Trump org investigation. Like this is a Manhattan investigation. And every local DA's office in the country is not going to have jurisdiction to investigate. Now he's got real estate holdings in other places. But this is not the kind of thing that is going to be a possible investigation for most DA's in the country. And also for any investigation there, you know, this is a grand jury investigation. There are

very powerful secrecy rules. And so the idea that this is about, you know, disclosing information that will embarrass the president, it just felt to me like he really effectively refuted that suggestion by, you know, he sort of seemed to give his personal assurances to the justices, but in a way that, you know, he had the credibility to do, that these are documents that will be kept confidential because the grand jury secrecy rules, the grand jury secrecy rules in New York would permit no other result. Yes. No, I thought he had, he was substantive. He was responsive. He had answers to limiting principles. He had answers to all of their concerns. I just thought he did a really

spectacular job. And he kept coming back to, I think, really persuasive themes about the dangers of adopting either the Solicitor General's position or the President's personal lawyer's position, the danger of lost evidence, the danger of impeding investigations and thereby denying individuals due process. And he also had this nice recurring line about, you know, that's the beauty of a case- specific analysis. You look at the particular subpoena and you say, like, is there any colorable argument that this is going to unduly burden an individual? And there's no colorable argument that here, right? So like, we just get to move on. And I just thought he did a really, really nice job. And it was really a pleasure to listen to it, especially after the House subpoena cases.

You know, just as sort of to the nitty gritty point, he was, you know, he is clearly concerned that this, he's nervous about statute of limitations, right? So this idea of temporary immunity would mean the president could largely run out the clock on, or could well run out the clock on some state statutes of limitations. And there was some suggestion that tolling might be a possibility. And he just sort of said, like, I'm not sure where that's coming from. Like, we have no doctrine that would allow us to toll. And even if it did, it wouldn't toll it against third parties. Right. So these so so right now, like the time they have is the time they have to conduct this

investigation and potentially to bring charges if they want to. And they have already burned a lot of months with the court pausing their investigation while this case is litigated. And so, you know, he I thought he seemed to sort of be where the first case that justice seemed to get increasingly worked up about the kind of interbranch stakes of it. And they're going to have to make some big pronouncements, I think, one way or another. Here, he almost seemed to suggest like this is a local investigation. The presence of the president, you know, is not that relevant as a constitutional matter. No one's really been able to explain why it would be.

And so just let us do this investigation. And I thought that that was like an extremely effective strategy to sort of say, let this grand jury kind of proceeding run its course. And I think there's a good chance that he's going to win the case. Yeah, I just think he did a great job as an institutional lawyer projecting details about here's specifically how this institution works that I can represent to you and like it's why we need to win this case but by far the high point in this argument was as we previewed Sam Alito recognizing and channeling his inner concern with prosecutors so uh here he is questioning Kerry Dunn about his fear about prosecutors gone wild.

We both know that prosecutors have different, that there are prosecutors who leak all sorts of information, including grand jury information, all sorts of media sources, including specifically the New York Times. If there were a showing that that was a risk, would that have a bearing on this? And I think we should play Dunn's answer here, which I thought was quite effective. Your Honor, it's hard for me to, I'm not aware of any kind of real pattern or practice of leaking of actual grand jury materials that are covered by grand jury secrecy. Yes, in all different kinds of offices, there are at times, you know, leaks of status of cases and that kind of thing. But I am not aware and our grand jury

secrecy rules really prevent prosecutors, I believe, from actually turning over confidential grand jury secrecy materials to... You're not aware of this ever happening? Your office is never requested by media in the New York City area to disclose confidential investigative information? No. Well, they ask all the time, Your Honor, and the answer is consistently no, at least as far as I can represent. So bottom line about these cases,

as we suggested, federal government was made to look more reasonable because of the, frankly, deranged positions taken by the president's personal lawyers. The prior decisions that we've been talking about, Nixon and Clinton, unanimous. No way this case is going to be. Although New York could be like a 7-2 maybe.

I don't think that's going to be 5-4. I wouldn't rule it out, I guess. Yes, no, that one's not going to be 5-4. I agree. I think it'll be unanimous on rejecting the most maximalist sort of temporary, or seven or eight justices for the proposition that this invented temporary absolute immunity is, you know, is not a thing. That's not a thing.

No. So and but other than that, I don't know. I think it's a real shame that the House is not going to get an outright win in the case. Yeah, there's one other bottom line that I sort of wanted to flag, which is something I've thought about before. And I'm not sure I've said on the podcast, which is, you know, it's pretty crazy how many of the justices have executive branch experience. You know, so Ginsburg doesn't and Breyer doesn't. And everybody else, if you counsel to my local DA's experience, the chief was in the White House and the Department of Justice. Thomas was at the EEOC. Alito was a prosecutor for years. Gorsuch, Kavanaugh, they were all.

Kagan. Kagan, you know, has been in and out of the executive branch. And so literally, except for Breyer and Ginsburg, they've all been in the executive branch. And in particular, in the first case, I wondered if that wasn't somewhat on display. Like you spend enough time in the executive branch. There are certain principles of kind of presidential prerogative that sort of get a little bit into your DNA. And it's one of the many reasons that more experiential diversity on the court would be extremely valuable. But I actually also thought that maybe because if you've been an executive branch lawyer, especially like a White House lawyer, these, you know, Nixon and Clinton are, you know, these are really important precedents that everybody sort of is working with and around and have also sort of internalized the proposition that legal process does under some circumstances apply to the president. for deviating from that principle. And so I wondered whether the backgrounds of all the

justices might be relevant in both of those ways, in different ways in the kind of real interbranch dispute in the first case, and this kind of adherence to settled precedent with respect to the president and legal process in the second case. So last thing I wanted to say. Yeah, that's really interesting, because usually I would think about experience in the executive branch as giving the justices likelihood of expansive visions of presidential power. But here, maybe. Right. And maybe in the first case, I think it might. Yeah, but it does, however, maybe also lead them to internalize these important precedents that have structured, you know, executive branches since then. My one other note was just a brief note in case

you are listening. Nancy, Earth to Nancy Pelosi, if you are thinking about who will argue the Affordable Care Act case, the case literally about the future of the entire Affordable Care Act next year, maybe select somebody else. I'm just floating it. Again, I'm not trying to be mean. I don't want to be mean. I hear only nice things about this person, but this did not go well. We should say that for the states, I think in particular California, there will be another lawyer, but since the House is in the case, you have your choice of advocates. Yes, you do. Okay. So we're already over. So I think we should probably wrap.

Yes, we'll discuss the faithless elector cases on another episode. One note is a development in one of the cases, Amy Stevens, the lead plaintiff in the title seven case involving discrimination on the basis of gender identity passed away this last week um her friends started a go fund me for her end of life care um uh and the aclu has indicated that her estate is going to intervene to proceed with the case but she will not live to see the court's resolution of her case, which is, you know, very sad and tragic for all kinds of reasons. RIP, Amy Stevens. And then just two other developments. The Wisconsin Supreme Court, the day before we taped, struck down the executive branch's, actually the health secretary's, stay-at-home order in a truly insane decision in which several justices make extended comparisons to Korematsu.

Yes, stay at home orders, exactly like the internment of Japanese American citizens in World War Two, except in literally every way. Yeah, pretty shocking decision. I will say there was it wasn't a strict party line vote. So Brian Hagedorn, a conservative justice on the court, actually crossed over to dissent. So this was a five. Sorry, this is a four three as opposed to a five two decision. But that is the end of the road for that case, because this is a state law decision. So the Supreme Court will not be asked to intervene. And literally just as we were sitting down to tape earlier in the day, there was a big case out of the Fourth Circuit that allowed one of the remaining emoluments clause cases against

the president to go forward. I have not yet had a chance to read it, but I think there's some tea spilled in particular in Judge Wilkinson's dissent. That's what I hear on the Twitter machine. So we'll probably, we may talk about that in a later episode. Yes. So thank you all for listening. As we've mentioned, we really enjoyed getting the chance to meet some of you as part of the GLOW happy hour. And we really appreciate you listening to the podcast.

Thanks, as always, to our wonderful producer, Melody Rowell. You can sign up to support the show and allow us to pay Melody on our website and by signing up on our GLOW campaign, glow.fm slash strict scrutiny. You can also support the show by getting some strict scrutiny merchandise. We just released some new merchandise which has our show logo

together with the phrase angry feminist podcaster. Which you should totally get whether or not you have a podcast. Exactly. We can all be angry feminist podcasters. I've ordered them for my children

and they don't have podcasts yet. I love it. Thank you to Eddie Cooper, who makes our intro music. And again, thank you to our listeners. I wanted to also give a special shout out to the listener that Jamie and Melissa thanked last week, Clara Steen, who sent me the most wonderful email about the podcast. And getting emails like these is truly a highlight of this podcast. All right, I think that's it for now. See you next time, everybody. Bye.