Strict Scrutiny - Eat Your Spinach

Episode Date: September 30, 2019

After a fun game of “how I spent my summer--Supreme Court edition,” Leah, Melissa, Jaime, and Kate preview some of the cases they are watching for the upcoming term. They also discuss other issues that might make their way to the Court soon, including significant executive power disputes that might allow the Chief Justice to make some fashion waves. 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 back, everyone, to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I'm Leah Littman. I'm an assistant professor of law at the University of Michigan Law School. I'm Melissa Murray. I'm the Frederick I. and

Grace Stokes professor of law at NYU. I'm Jamie Santos. I'm an appellate attorney at Goodwin Proctor in D.C. And I'm Kate Shaw. I teach at Cardozo Law School in New York City. Now, many people are saying this is a podcast that's so fierce, it's fatal in fact, and we're hoping to deliver on that promise in this episode today. So today we are going to talk about how I spent my summer vacation, SCOTUS edition. We will also be giving you a term preview both about the cases the court is going to hear this upcoming term as well as some other developments and themes that might make their way across the Supreme Court's desk. Finally, we will do a short segment on Supreme Court culture,

drawing on developments again that occurred over the summer as well as those that might occur this upcoming term. Let's get started with how I spent my summer SCOTUS edition. So the Supreme Court was active this summer, but what exactly were they doing? Who knows? But we can tell you what we were doing. Jamie, what did we do this summer? So we have been preparing for our full-time launch, which starts today with this episode. So we spent the summer getting some intro and outro music for our episodes. We also launched a website, strictscrutinypodcast.com, where you can get some great swag to help support us and the expenses incurred in bringing this awesome content to you. Melissa, what's your favorite swag from the website?

Well, I do love the TriBlend t-shirt because it's super soft and it feels really good and it's kind of fitted. So it's sort of the perfect length and the perfect width for wearing with jeans and with sweats. So I like that one. Wait, Jamie, you told us yesterday what swag stood for. Will you please tell our listeners? It is not just a cool-sounding word. It is actually an acronym, and it stands for souvenirs, wearables, and gifts. So there's your useless content.

We're already learning. I just wanted to make a quick aside about the theme music, which is wonderful, but still a work in progress. And specifically, we're still waiting to get submissions from both Lizzo and Taylor Swift. So it might be changing in the next few episodes. Their people are talking to our people. So it might take some time, but it'll work out. OK, enough about our summer.

I bet what our listeners want to hear about is how the justices spent theirs. Now, Kate, I know you have an update about our summer. I bet what our listeners want to hear about is how the justices spent theirs. Now, Kate, I know you have an update about Justice Ginsburg. Do I need to be sitting down before you share it? So, right. We start with a slightly serious note, which is, as a lot of our listeners will probably know, Justice Ginsburg had a cancer scare this summer. So in August, we learned that RBG had spent part of her summer undergoing treatment for pancreatic cancer. She's actually had several previous bouts of cancer, including pancreatic cancer once before. And she's always been super forthcoming about her health information. Not all the justices are, but she really always has been. So she released this detailed statement explaining that she was in New York for a couple of weeks, that she underwent radiation, that her tumor was treated definitively, and that there is no evidence of cancer elsewhere in her body.

So, you know, it's scary, but it sounds as though the treatment was really successful and she looks and sounds great, right? While she was undergoing the treatment here in New York, she went to the theater, she went shopping, she went to see the movies, and she has been back on the speaking circuit and I assume will hit the bench in fine form when the court resumes hearing cases in October. So, you know, I was, you know, a little bit floored. I think we all were when we heard the news, but it sounds like she's doing really well right now. I still can't resist a big fuck every time I think about this again, because this would just be such a significant development for the court. And I also wanted to

put it out there, Justice Ginsburg, in case you are listening, feel free to take my pancreas. And if any of her law clerks are listening, I hope you have Purell everywhere in chambers. Wash your hands all the time. Maybe take your shoes off in chambers because that can be a primary contributing factor to the spread of disease. Flu shots. We all got flu shots when I came to the court. Really important to do that. Herd immunity clerks. Get it together. Get it together. So a couple of the other justices came out with books this summer, and one had a book come out about him. First, Justice Gorsuch came out with a new book called A Republic If You Can Keep It. And I understand the book is basically a collection of speeches, essays, and opinions that talk about the loss of civility in public discourse. It even has its own Twitter account. I have not, I haven't read the book. And I my general preference is for biographical books

by justices because I feel like I can get from their opinions, their judicial philosophies, and it doesn't cost me any money. But I don't know if anyone else has read it or has any thoughts to share. You know, always love to hear calls for civility and public discourse from people that allow the president to ban Central American migrants from seeking asylum in the United States and also refuse to identify President Trump in any of the calls for civility. So, you know, that's kind of what I would say there. Et tu, Neil? Et tu, Neil? One potential, you know, interesting take on it is that I noticed that he published the book with two of his former law clerks, David Fetter and Jane Nitzke, as co-authors.

And I haven't seen that before. And I do think that is pretty cool. That's cool. I saw the book featured at a bookstore in the Philadelphia train station. And some very enterprising clerk had decided, not judicial clerk, but a shop clerk, had decided to display it alongside Margaret Atwood's new book, which I thought was pretty badass. Oh, the sequel to The Handmaid's Tale. Yeah. Oh. There's something about the rollout of this, which I just think is a little bit odd so he gave an interview to the wall street journal opinion pages um as part of the book launch he also gave an exclusive excerpt to the federalist um which appeared alongside you know criticisms of

marvel comics use of identity politics um you know that. Identity politics, civility. I don't want to read this book. Well, so that piece was a separate piece on The Federalist, but it was just the selection of that site in order to publicize the book given the other content there I think is a little bit curious.

So too is selecting the Wall Street Journal opinion pages as well as Fox News as the kind of rollout to the book. But you do you, Neil. I actually would be interested in seeing the, because I know he's been on the speaking circuit about it. And I haven't seen any DC stuff,

but I might be interested in going and seeing how that goes. But Melissa, did anyone else come out with a book this summer? Why, Jamie, I'm so glad you asked. Justice Sotomayor also had a book. This time it's a children's book. So she's had a couple this summer. Why, Jamie, I'm so glad you asked. Justice Sotomayor also had a book. This time, it's a children's book. So she's had a couple of other books before, My Beloved World, which is her memoir, which then subsequently reframed for a younger reader audience. But this is truly a children's book. It's called Just Ask, Be Different, Be Brave, Be You. And basically, it's a children's story about kids who are dealing with particular

challenges, some physical, some cognitive. It starts with her and her challenges being a juvenile diabetic and basically sort of how to deal with it, how to ask other people to deal with your particular issue and how to be a more accepting culture and world. So it's very sweet. The illustrations are lovely. And she hosted a book party for it and a reading at the 92nd Street Y here in New York. And I took my children and my son, who is eight, got to ask a question of the justice. What was your son's question slash take on the book? Well, he had a couple prepared. I decided that he should not ask the first one about our deference, but he then subsequently asked a second question.

And his second question, I think, took her by surprise. And the question was, are there snakes in this book? To which she definitively answered, there are no snakes in this book, which disappointed my son, who later confided that all of the best books have snakes in them. Harry Potter, the Bible, all of them. And there we are. Wait, but so you pre-approved this question? I didn't actually pre-approve any of the questions. He was just writing it by himself. And so when he was selected, I was a little sort of, uh-oh, what's going to happen now? And I was not disappointed. I'm sure she loved it. It's kind of like the inverse of snakes on a plane. Yes. Right? Like,

get these motherfucking snakes in this motherfucking book, right? So kind of a nice inverse there. He doesn't know those words. I think that this episode is also going to be rated explicit. Yes. All right. Any other books on the horizon for SCOTUS? under-examined during the confirmation process. So I should say I haven't had the chance to read the book yet. It's called The Education of Brett Kavanaugh, an Investigation. It's written by two New York Times reporters, Robin Pogrebin and Kate Kelly. But an excerpt ran in the New York Times, and I've listened to interviews with them, and they were able to locate some pretty significant additional material corroborating some of the allegations of sexual misconduct against a young Brett Kavanaugh, and also found one entirely new allegation stemming from his time at Yale. So again,

haven't read the book yet. I plan to, and if others do too, maybe we will revisit it at some point. You know, I think I'll say that some folks, some Democratic presidential candidates, and some others, use the occasion of the publication to start calling, calling again. Some there have been previous calls for Justice Kavanaugh's impeachment. And look, it's definitely true. You can impeach a Supreme Court justice. Right. It's only happened once and he wasn't removed, but it's possible. But I don't think those calls are likely to get any traction in it, even if they would in other circumstances. They've obviously been overtaken by other calls for impeachment, which I think we're going to talk about later in the show.

But, you know, I think it's appropriate for journalists to continue to investigate. Right. The investigation was really rushed and not thorough back Justice Kavanaugh's membership on the Supreme Court is a constructive conversation to have at this point. So, you know, I think that it's maybe a useful occasion to reflect on the stakes, the personal stakes for those who come forward to accuse powerful men of misconduct. I think that's one of the big themes of the book. But what do you all think? Melissa, what do you think? I'm really looking forward to reading the book. But what do you all think? Melissa, what do you think? I'm really looking forward to reading the book. I think one of the things that it really makes clear is just how important journalism has been in the last couple of years and sort of sussing out, getting more information

about a lot of different issues, whether it's Me Too or circumstances with foreign countries. I think we're really more dependent than ever on the press to surface things that perhaps we can't count on the government to surface appropriately. It's interesting, Kate, that you brought up this idea about what a constructive conversation would be in light of the publication of this book, because I think this is something I also struggle with, to know what the kind of right way to talk about this and incorporate it into a conversation about the Supreme Court would be. And I say that as someone who at the time of the confirmation hearings thought that the process was, as you alluded to, lacking,

right? Not sufficiently careful, right? Didn't actually look into any potential witnesses and so on. And also someone who believed that the two accusers were at least credible. But I don't know what to do about that now. And what I mean by that is I am also someone who believes that one of the failures that led to Me Too is the return to like referring to powerful men who were accused of sexual misconduct just as the powerful men and like all of the things that they've accomplished

in their life and that it is a disservice, right, to women who make accusations of sexual misconduct and also to the larger community just to forget about these accusations, right, and move beyond that. But, right, I am also of the view that, like, I cannot emotionally or just, like, psychologically relive that confirmation hearing and the accusations every time we discuss the Supreme Court or Justice Kavanaugh. Like, this is something I do professionally. I enjoy commentary about the court. And I can't do this, right, every time, right, we discuss the court, even though I think, like, that accusation and the confirmation process is relevant to understanding about the court and shouldn't be forgotten. and not wanting women who make accusations of sexual misconduct to feel forgotten or lost, but also needing to talk about the court and what the court is doing without constantly discussing that as well.

It's just I'm not sure what a constructive conversation is here. No, I think that perfectly encapsulates some of the tension. So we'll just kind of keep working through it, right? I think we talked about it a little today today and we may continue to talk about it. And I think if listeners want to weigh in on whether it's helpful or not to kind of continue to think about and talk about this, we'd be open to hearing from you all. So there were some other big summer developments. One I wanted to mention is an article that is being published by Steve Vladek, a professor at the University of Texas. And it's Steve's birthday the day that we're taping. So happy birthday, Steve. So he's coming out with a

comment that's going to be published in the Harvard Law Review about the current solicitor general's requests for extraordinary relief from the court. And those include things like requests to stay lower court decisions or requests for the court to grant certiorari before the lower courts even issue a decision and even requests for what are called writs of mandamus that basically would stop district courts from taking certain actions. And the article is really interesting. Does anyone know what Steve found? That unsurprisingly, this administration seeks those forms of extraordinary relief from the court vastly more than any prior administrations and that the court has granted extraordinary relief, at least in the form of

stays with some frequency as well. Exactly. How much of an outlier is it though, Leah? What Steve found is that just looking at the request for stays that the current SG, Noel Francisco, has sought stays 20 times more frequently than the S.G.'s in the Bush and Obama administrations. 20 times. Wow. Which is really stunning. But I think what's important is that, as Leah mentioned, you know, the court has granted most of them, even when it seems unwarranted. And even at the same time, refusing to grant stays of executions when faced with meritorious challenges by capital

defendants. And at no point has any majority said, hey, this is kind of out of line, you're going too far. Though I do note that it's clear that not everyone on the court is as jazzed about this. Justice Sotomayor cited Steve's forthcoming article in a recent dissent that was about the Supreme Court's grant of a stay of a federal, sorry, of an injunction against a federal regulation that would significantly restrict the availability of asylum for mostly Central American immigrants. So she did cite the forthcoming article, which, you know, it's clear that the court, some members of the court have taken note of this. And that article is called the Solicitor General and the Shadow Docket. Is that right? Yes, I think so. It's available on SSRN now. And I think it's in the

Harvard Law Review's November issue, which is all about the court's upcoming term. Excellent. Leah, you have an update too, right? Yes. So since we're discussing what the various justices did over the summer, maybe it is also useful to discuss some reporting related to one of the justices that occurred over the summer, and that is Joan Biskupic of CNN broke the news that the chief justice actually switched his vote in the major census case from the last term. We noted this possibility when we discussed the case on our term episode, specifically, Melissa, I believe you noted this possibility, right? Like, what about the opinion when you read kind of signaled like, this looks like someone who

was maybe not initially on the side? Because the whole first part of the opinion basically reads like he's okay with it. And then there's this abrupt about phase where he's like, lie better next time. And then there we are. I think that's exactly right. And like the first part of the opinion is entirely unnecessary given that he ultimately vacates the rule, right? He doesn't then need to conclude, right, that that decision is permitted under the relevant statutes, right?

Or potentially not arbitrary and capricious because it's not against the great weight of evidence. Like he doesn't need to make any of those conclusions if he's just going to conclude as pretextual. Was this Joan's second scoop about the chief switching sides? Didn't she have a scoop before about him doing the same thing in the Affordable Care Act case? That was in her book.

Oh, okay. So, yeah. Yeah, she wrote a book about Chief Justice Roberts that came out, I think, last year? I think that's right, yeah. I guess around the holidays. I thought it was a very interesting book, super insightful. And so I would commend it to anyone. But, yes, she did talk about the Affordable Care Act case and the chiefs switching votes there.

Yeah. So she's clearly got great sources inside the Supreme Court. And it's not – a lot of people said, oh, clerks were talking. There's just no way. Well, I don't think there's no way. But I think it's also possible that justice – in some ways it seems more likely that there were justices and most likely justices unhappy with the switch. I thought there was a supreme source. Yeah.

Or sources. And yet they – there are some things that the ACLU, I think, very cleverly brought to the Supreme Court's attention after oral arguments. Did that figure into the kind of vote change she did? She didn't say either way. So I think there's still a lot we don't know, but it was a fascinating article. So I clerked during the Affordable Care Act litigation. And, you know, while the court heard that term, Jan Crawford of CBS actually, you know, published some stories about how the justices had voted before the decision in that case came out. And I remember everyone in the building, the clerks were just shocked. Like it was unbelievable to anyone that a clerk would talk to a reporter about the court's internal deliberations.

You know, I think it's maybe possible that a clerk did so this time. But I guess I just can't think that they would do so without some implicit or explicit permission from their boss. I've also heard that at the beginning of each term, the chief justice gives this talk to law clerks that basically scares the living daylight out of anyone who might possibly think about providing any information to anybody about the court's inner workings. Is that right? I don't remember being so scared by it, but he definitely gives a stern lecture. Yeah. Kate was like, come at me, bro. No, I mean, I take confidentiality norms incredibly seriously, but maybe because I already did, it was just like, oh, of course we can't talk, you know? And in some ways it wasn't, it's not like a high octane presentation because I think he is sort of suggesting that this is something that we should all be aware of, but let me just

remind you of these sacrosanct confidentiality obligations that you all have. And that was sort of it. Okay, so that about wraps up how the different justices in the court spend its summer vacation, which means we can actually move on to the things we are watching on this upcoming term, either cases or different developments that might make their way to the court's docket. So I think that Melissa and I are watching some of the same cases and one – great minds, right, Melissa? Mind meld. Total mind meld. To be fair, Jamie and I are watching these two. Yes.

Fair enough. Didn't mean to leave you two out. One of the cases that I'm definitely watching, well, it's not one case, it's three cases, but they are kind of grouped together, are the upcoming Title VII cases about whether it violates Title VII's prohibition on discrimination on the basis of sex for employers to fire individuals on the basis of their sexual orientation or gender identity. And those cases are Bostock, Zarda, and Harris-Uner Holmes versus EEOC. So that's the legal question in the case. And I guess one reason why I'm interested in this is that I feel like thematically they

are related to last year's census case in that they really pit issues of the justices' methodological commitments versus what their sympathies might be on the policy side. So specifically in the census case, you have a majority of the justices who are increasingly skeptical of the administrative state and require agencies to really dot their I's, cross their T's in order to justify various policies. And arguably, given the record in the census case, that should have led to a unanimous decision invalidating Congress's attempt to add a citizenship question. Here, right, I think given the justices' commitments to textualism, the idea that we care about the actual words Congress used, not Congress's purposes or their expectations about how the text might apply to certain cases. Given those commitments, I think that the plaintiffs in these cases, the ones accusing their employers of discrimination, should prevail because it is logically impossible

to make a decision to fire someone based on their sexual orientation or gender identity without considering sex. These things are just so grouped with one another that as a matter of plain text, I just think the argument on behalf of the employees is so powerful. And so I'm interested in that disconnect between the methodological commitments and the justices underlying leanings. So I'm interested in the case for a lot of the reasons that Leah suggests. But I'm also really interested in this idea about what comes after Obergefell. And as Leah just teed up, one of the really interesting themes that emerged from the Obergefell oral arguments, this is back in 2015, was when Chief Justice John Roberts asked questions about whether this case could be decided on sex discrimination grounds. So Obergefell was a case trying to decide whether the right to marry included the right to marry a person of the same sex. And at oral argument, he asked, why isn't this a sex discrimination

case? Like if men want to marry men, that's a sex discrimination problem because we would allow them to marry women. So it's about the sort of choice of partner and the gender of the partner. That did not get played out at all in the opinions in Obergefell. Anthony Kennedy wrote a sort of peon to love and marriage. He sounded a lot like Bridget Jones, like marriage is about crying out in the dark and knowing that someone's coming to find you. So we never got a lot about sex discrimination. But that, I think, you're exactly right. That is one of the questions at the core of this case. I also think it's really important in terms of what happens post-Obergefell becauseal landscape with Masterpiece Cake Shop and now this trio of

cases that, in fact, marriage equality only solves some of those issues and not even for everyone. And so, you know, we have this federal law that stands in for those in states where there is no state-level anti-discrimination law. So if this sort of federal protection that's available in the EEOC's ruling is overruled by the court, we're going to have a lot of individuals, roughly the state of the number of people who are present in the state of Ohio, who would be without anti-discrimination protections all over the country. Yeah. So just on the issue of LGBT rights in particular, I think that's exactly right. You know,, after Obergefell, how else, if at

all, are we going to protect LGBT individuals' civil rights? And the implications for this case are, I think, even more dramatic than perhaps we appreciate, because formally, they just present the question about whether employers can fire an individual because of their sexual orientation or gender identity. But actually, the cases could have broader implications for future administrations' ability to promulgate regulations to protect civil rights in areas of housing or education, because the federal statutes that prohibit discrimination in housing or education or employment allow the federal agencies to promulgate additional regulations protecting individuals from discrimination on the basis of sex. And it was by relying on that authority that the Obama administration created the guidance documents and other regulations prohibiting

homeless shelters from discriminating against transgender youth or prohibiting schools from discriminating against transgender students in their provision of bathrooms. So if the court says that discrimination on the basis of sexual orientation or gender identity doesn't count as discrimination on the basis of sex under Title VII, it might be impeding future administration's ability to protect the LGBT community by additional regulations. The one thing about these cases that drives me nuts is that this issue could have been totally avoided by Congress just explicitly staying in the statute, just amending the statute to explicitly reference sexual orientation and gender identity, like many states have done. Even the federal

judiciary has modified its own policies to explicitly include sexual orientation and gender identity. And I am disappointed and still kind of floored that Congress didn't do so in 2007, 2008, 2009, 2010. I understand now it would be too hot button, but why on earth was this not done before, which could have prevented, you know, potentially bad law being made that could go far beyond just answering the question presented,

like in considering how, you know, what standard of review will be applied and all kinds of other things. So that's what's right. Yeah, I mean, to Jamie's point, yes, it surely would have been appropriate for Congress to have amended Title VII. But there's this question in the case of how much it matters that it didn't, right? And so I think it's so interesting in the briefs, both by the employers and, as Leah was talking about, the federal government, we should say, if we haven't explicitly,

that the Trump administration has come in on the side of the employers and takes strongly the position that sexual orientation and gender identity discrimination are not covered by Title VII. What's the EEOC's position? They haven't filed. And I don't know the backstory there. And so there is one. We do know that the EEOC lawyers didn't sign the brief that the DOJ filed. But could they have filed a brief anyway? And because they did in the Second Circuit, right? So one of the cases up before the court had two different federal government briefs, one by the EEOC on the side of the discrimination plaintiff and one by the Department of Justice on the side of the employer. But we haven't seen that here. But, you know, so the brief takes the strong position that it's so long as you treat gay men and lesbians equally badly, that's not sex discrimination, sort of full stop. And it's like kind of a gobsmacking set of arguments that the administration makes.

I mean, the employers do too, but it somehow feels really different to read the Department of Justice's brief making the same point. But to Jamie's point about Congress's failure to act, it is so interesting how foregrounded that fact is in the federal government's brief. They don't start with the text. And I think it's because, as Leah suggested, the textual argument in favor of the plaintiffs is extremely strong. To discriminate against somebody on the basis of the sex of their partners or their own transgender status is obviously, I think, sex discrimination.

And so they don't really focus on text. They focus on Congress's failure to act, which is a kind of legislative history, which is typically not the mode of argument that they're most comfortable with. Also, subsequent legislative history, right? Not just pre-enactment legislative history. This is like failure to act, right? That's a very low-value kind of legislative history. And yet that's where the brief starts. And so I totally agree the substantive stakes couldn't be higher. But also,

there are these incredibly interesting methodological questions that this case is going to really, I think, reveal. So, you know, I sort of feel like there's a good chance this case is a strong textualist victory for the plaintiffs. But maybe that's unduly optimistic. And I'm glad you brought up the federal government's brief, because in that brief, the federal government also takes a position which could have serious implications for the court to embrace it, that sex stereotyping is not itself discrimination on the basis of sex in violation of Title VII. So, right, if you take that theory seriously, what does that mean? It means employers can penalize their employees for failing to conform with the employer's ideas about what it means to be a man and what it means to be a woman as long as the employer imposes those stereotypes on both men and women. So using that logic, right, employers can like fire women for wearing pants to work, right, if they're imposing dress

codes on both men and women or for firing women for failing to wear makeup. Like there's just a bunch of odd implications of the employer's argument, which given that Title VII is supposed to eliminate, you know, the relevance of sex in the workplace is just, again, like the law on sex stereotyping in the text is not really on their side. So they have to make all of these moves in order to kind of cabinet. And we'll see whether that ends up being successful. Melissa, I think you are also watching some additional cases that are of interest to us all? Not surprisingly, I'm watching the court's abortion docket. And there are a lot of cases that are percolating up through the lower federal courts. But one that has been pending on the cert docket since April 2019 is June Medical Services,

which we've talked about here before. That's the Louisiana admitting privileges case. Louisiana promulgated a law that requires abortion providers to have admitting privileges at local hospitals. And it is exactly the same law as the one struck down in 2016 in Whole Women's Health versus Hellerstedt. The only difference is this law is in Louisiana and that law was in Texas. And according to the Fifth Circuit, Louisiana actually had more time to build a better record that actually supported its case. Not sure I'm quite there with them on that one, but this case is pending. And I think whatever happens with this case will tell us a lot about where the court is going in terms of abortion. And I think all eyes

should be on Chief Justice Roberts and Justice Kavanaugh. Earlier in the year, in February, the court heard a petition for a stay in this case to enjoin enforcement of the law to prevent the law from going into effect. And advocates had argued that if the law were to go into effect, it would basically leave Louisiana with just one abortion provider for early term abortions in the whole state. And so Chief Justice Roberts joined with the four liberal members of the court to enjoin the enforcement of the law. But Justice Kavanaugh actually wrote a dissent. He was with the other remaining conservative justices, but he wrote a separate dissent saying basically that we should

allow this to go into effect because built into the law was a 45-day regulatory transition period. And that period would allow us to see for ourselves whether, in fact, it was true that the doctors would be unable to get the required admitting privileges. And that would eliminate the number of providers available in Louisiana. So first, can I just interject there? Because that claim was just so ludicrous, right? Even though there was this 45-day regulatory stay, right? But it's so on brand. It's so on brand. It's the same kind of claim.

Of course it's so on brand. Yes, it's the same kind of claim he made in Garza v. Hargain. But like the point is, is that the agency with enforcement authority in order to bring criminal penalties, right? Like they weren't limited by this regulatory stay. So the criminal penalties would have gone into effect, right? Even if there was this regulatory stay, like it was just this incredibly frustratingly specious dissent that... So I think they're the two to watch, right? So there are clearly four liberal justices, just write this down. I think there are at least three justices who would vote to uphold this law. The question, of course, is whether the court's

going to take cert on it. It takes five votes to issue a stay. It only takes four to grant cert. And so I think the real question is, will either Roberts or Kavanaugh join with Alito, Gorsuch, and Thomas, who I think likely want to see this teed up? Or will they back off? And this will go away for now. Wait, but you think the liberals won't vote to take this case? The Fifth Circuit let this thing, right, go into effect. I don't know that they I think there are four votes to grant. They have to grant the case. They can't let the Fifth Circuit opinion stand? Yeah. All right. So we're going to hear this case. I think the question is what then happens.

Yeah, I agree. Okay, so it's on the merits. I don't know. Look, I mean, it's a question of could they say this is too dangerous? We will let this Fifth Circuit opinion stand, although it clearly undermines our authority to say what the law is because it's totally inconsistent with this decision we issued. But isn't it possible that maybe the liberal justices might say, listen, you can barely get an abortion anywhere in the Fifth Circuit anyway, so let's not potentially lose it for the whole

country? No, I don't think so. That's too practical. That's too political, I think, a mode of analysis. I think they would say this is wrong on the law. They obviously do take these pragmatic considerations into account. I think it's crazy to think they don't at all. But that kind of thinking, I just don't think they allow themselves to engage in. So speaking of the realpolitik of all of this, if they do grant cert on this, this is coming up on the edge of 2020 and an election year. And I wonder if that makes Chief Justice Roberts and maybe some of the conservatives, give some pause. I mean, to uphold this law as we go into an election cycle would galvanize so many women voters, like 70 percent of voters. Do you really think that, Melissa?

I think that if they issued an opinion that said we overturn Roe, right, maybe that might galvanize a bunch of voters. But like an incremental decision. If they issue an opinion that says, right, like we overturn whole woman's health versus Hellerstedt or we modify the large fraction standard or we say there's no third party standing, right? Or we say, right, Louisiana is entitled to like, you know, differentiate the factual record, right, from the record in Hellerstedt.

I don't see that as like mobilizing voters, even though I think it should, right? Because that would have the same practical consequences. I think it would go over the heads of lots of voters if they decided in a more incremental fashion. But not if they listen to strict scrutiny. That's why everyone should listen to strict scrutiny. But again, I think this is, if you're interested in reading tea leaves

about where the court's going on abortion, I think this is the case to watch. And Leah, you have some criminal cases you're interested in, right? I'll just say the two I'm interested in because we are really going to try to keep our episodes to around an hour. The first involves juvenile resentencing. Malvo and specifically whether the state's chosen remedies for resentencing juveniles in the wake of the Supreme Court's decisions in Miller v. Alabama, Montgomery v. Louisiana comply with the court's decisions in those cases. And that case involves the D.C. sniper, right?

So it's a high-profile case. Yes, it is a high-profile case. And the other case is whether a state can abolish the insanity defense. And that's Collar v. Kansas. And the reason why I find those cases interesting is they really push the limits of what is substantive and what is procedural in criminal procedure and whether we can get by with just tweaking the process in order to protect the underlying substantive values that we think might be at stake in those cases. Cool. So, Jamie, if Melissa and I are interested in Title VII abortion and criminal procedure, you are interested in the court's even more big ticket cases, right? Yes, I am excited because it is the term of ERISA. We need dramatic music there. So most terms, the court has what I call an eat your spinach docket.

It's usually a group of maybe patent cases or bankruptcy cases that help fill out the court's docket without being too hot button. And this term, ERISA, is basically the entire eat your spinach docket. There's already three grants for this term. You can explain what ERISA is, right? Yes, I will. I will. So ERISA is the Employee I mean, yes, I will. So ERISA is the Employee Retirement Income Security Act of 1974. And basically, it has a whole bunch of parts,

but the main part for all of these cases have to do with your retirement plan, employer-sponsored retirement plans. So there's three cases that were granted for this term and one petition awaiting a CVSG brief. And Kate, do you want to mention, describe what a CVSG brief is? Oh, sure. So the court, relatively frequently, I don't have the numbers at my fingertips, but a handful of times each term will ask the federal government for its views on a legal question in a case in which it's not a party, but where it has some expertise and probably has some views. And when there's a big federal statute that the federal government has a big role in implementing, even if the dispute is between, you know, a private retiree and their

employer, say the federal government will often be asked to weigh in about whether the court should take up the case at all at the search stage. So I think that's where we are. Yep. And so, Jamie, I know you like ERISA, but does all of the justices like ERISA? Absolutely. They all love it. They want all of the petitions to be ERISA petitions. Sure, Jan. So it is possible that RBG said this week, which will be last week at the time this airs, that even Supreme Court justices hate ERISA cases, which is objectively wrong and I'm personally offended by. But I need to reassure everyone because I noticed you all started falling asleep when I started talking.

But these cases, the cases for this term, present kind of bread and butter Civ Pro issues, which RBG should love because she loves Civ Pro. So there's three cases that were granted. The first one, IBM versus Jander, is about how to satisfy the Twombly-Ikbal pleading standard, bread and butter, stiff, proud. The second one, Intel versus Salima, is a case about ERISA's statute of limitations. The third, Thole versus U.S. Bank, is about constitutional and statutory standing to bring ERISA claims. And then the case awaiting the CBSG brief, Putnam versus Brotherston, is about the burden of proof of the element of causation in ERISA cases. So just think of these cases as a vehicle for cool CivPro issues, much

like crackers are a vehicle for eating delicious cheeses. And who could resist that? And peanut butter. So I actually gave my FedCourts students two years ago the issue in Thole as their FedCourts exam, because I do think it is like a super cool question. So the specific question there is whether you, okay, Melissa and Kate are making eye We just rolled our eyes at each other. I can see that. Let the record reflect that Leah used the term super cool in reference to an Arisa case. So what a time to be alive. Anyways, the specific question in Thole is

whether when a retirement plan loses money, but is still sufficiently funded that it can pay out its obligations to retirees, whether the plan beneficiaries, right, can sue the plan administrator, you know, seeking various forms of injunctive relief. So it's like whether they've established sufficient injury in fact or like risks of future injury in fact, which I just think is like super cool. Yes, either. It's just a vehicle for cool procedural issues. And that's what a lot of ERISA cases are about. I should also mention for full disclosure that my firm is handling the Putnam versus Brotherston case and I am working on that case. So I won't discuss it substantively aside from flagging that it is a potential fourth case for this term.

And then, Jamie, I also think you are looking at some cases that might make their way to the fourth docket, just like Melissa was as well. Yes, there's one I'm super excited about. Not necessarily doctrinally, but I think it's also doctrinally interesting. So there's a cert petition filed on behalf of Adnan Syed. Do you all remember who Adnan Syed is? Serial! Yes. The first season of Serial. Syed is? Serial! Yes.

The first season of Serial. Oh, so now you guys get excited. Come on. Yes, so Adnan Syed was the subject of the first, I think the first season of the podcast Serial. And I was totally obsessed with it a few years ago. And basically the case is about Adnan Syed, who was convicted of murdering his ex-girlfriend

when he was 17. And from what I recall from the podcast, there were a bunch of issues with the evidence at trial and with his trial counsel. one of Adnan's fellow students, Asia McLean, who said that she had seen Adnan Syed in the library at the exact time the prosecutors alleged the victim was killed. And she also even offered to identify other witnesses who could say that they saw Adnan Syed in the library. But trial counsel never brought her to trial and never even followed up on those offers. And so the question presented is basically about how to evaluate prejudice when examining claims of ineffective assistance of counsel. And Melissa or Leah, do you want to just briefly give the framework for ineffective assistance of counsel

claims? Because I think it's useful. Sure. So ineffective assistance of counsel is like a two-pronged standard. First, you have to show that your counsel's performance fell below an objective standard of reasonableness. And then you also need to separately establish a reasonable probability that your counsel's deficient performance prejudiced you, i.e. it affected the outcome in this proceeding. And I believe that Adnan's counsel is arguing that the trial court assessed prejudice not with respect to the state's actual theory of liability, but instead with respect to this alternative theory under which he might have committed the crime that wasn't actually the theory the state presented. And so they're arguing that that's an incorrect way to assess prejudice

for purposes of the Sixth Amendment. Melissa, do you look like you? I just recall those claims being very, very hard to be successful with. I mean, the standards and the sort of the level of error that has to be imputed to your counsel is so harsh and high that it's just very rare for a criminal defendant to prevail. It's almost the prejudice part of it is sometimes the easier prong. To prove that your counsel was actually ineffective, they basically have to do worse than fall asleep at trial. So it is a very rough standard. But I will say that luckily for Syed, he will not receive ineffective assistance of counsel

at the Supreme Court. He's represented by Kate Stetson, who is one of the absolute best appellate attorneys in the country and a UVA grad, Melissa. Wahoo, wah. And when she argued before the Maryland Court of Appeals, her oral argument was being broadcast and it was so gripping and she was so good

that there were basically dozens of people live tweeting it and following it on Twitter, which was super cool. She just speaks in perfectly formed paragraphs and prose. It's incredible. And then other than that, I'm just mostly hoping that no other hot button petitions get granted. I basically, I want all ACCA, Patton, and ERISA

cases from here on out. Deal. Kate, what are you- Except not. Except not. Nope, that's not going to happen. So we already have some extremely hot button issues that we should still mention, and there will, I suspect, be some others coming down the pike before the term is done. So let me just mention two. The first is a case out of New York, New York Pistol and Rifle Association, which basically the court here is poised to maybe decide its first Second Amendment case, sort of substantive Second Amendment case, in over a decade. So in 2008, the court held in D.C. v. Heller for the first time that the Second Amendment protects an individual right to gun ownership independent of militia service. But that case was really about owning and keeping guns in the home for self-defense.

And D.C. had this total handgun ban. Court struck it down but didn't say much about how other kinds of gun regulations would be reviewed. So a couple of years later, it extended the holding in Heller to the states because D.C. was a case involving a federal law. But again, so it's been now almost a decade without any real intervention from the Supreme Court on the meaning or scope of the Second Amendment. And in the meantime, there have been a lot of challenges to state gun laws. Prohibitions on concealed carry, state-level bans on so-called assault weapons, challenges by individuals who have old convictions for various kinds of felonies and say they shouldn't be disqualified from owning guns. And with a few exceptions, those laws have for the most part been upheld even under Heller. And the court has just let those lower court opinions stand. And a couple of members of the court, in particular Justice Thomas, joined initially by Justice Scalia and then more recently by Justice Gorsuch, have sort of gotten more and more incensed

about what he views as the court's apparent disinterest in taking up another Second Amendment case. So he has said on a number of occasions that the court is trying to relegate the Second Amendment to a second class right. So this case, which the court has agreed to hear, would be the first important Second Amendment case, would be the first important Second Amendment case in years and the first by this newly composed Supreme Court. So for reasons that we're going to put aside for the moment, there is a real question about whether the court will hear this case at all. But whether it is this case or some other case, it seems very clear that this court is poised to take up one of these cases and potentially dramatically weaken the ability of government to pass laws that promote gun safety and restrict gun use and ownership.

And this is a very significant development. I think it's really significant in part because it is happening at a moment in which public sentiment is actually really starting to move in favor of more gun regulation, I think for the first time in a lot of years. So we haven't had this kind of collision between what the public wants when it comes to gun regulation and what the court is willing to tolerate in some ways because the political constraints were powerful enough that states and localities weren't even really passing laws that might run afoul of Heller. You might actually find us in a different position in the not too distant future. And Linda Greenhouse has actually written a couple of columns about this, this sort of potential collision course, the public opinion about the Second Amendment and the court's likely future rulings on the Second Amendment may well be on. And then any other cases you are watching? The one other big one I think we do have to mention, I just want to wait, let me like one

quick thing about the Second Amendment case, which is there's a brief filed by the March for Our Lives kids, which will honestly make you cry if you read it, the amicus brief in this case. And I just kind of commend it to everyone because it's just a really different tone than most amicus briefs. It's a little about law, but it's maybe a dozen students telling their stories of gun violence. And they're just wrenching incredible stories. And it's just a very powerful brief that is just a genre-defying brief in many ways. And I think these kids are part of the reason that there is this sort of change in public

sentiment about gun regulation. And so I just wanted to flag it. Okay, the one other case that I think we have to talk about is a couple of cases involving DACA rescission. So these cases involve the Obama administration's 2012 DACA policy, which granted deferred action or temporary relief from deportation to young people who were brought to this country as children and who satisfy certain other eligibility criteria. So this was done through the executive branch, no congressional involvement. And it's a policy that over 800,000 young people have benefited from since it was issued. So 2017, the Trump administration announces that it's going to end DACA. And it says it's doing so because a Texas appeals court had struck down a related program called DAPA. And because the Supreme Court had tied for four, and a tie

means the lower court opinion stays in effect. So basically, because one lower court and four members of the Supreme Court presumably believed that DAPA was unlawful. They had concluded that DACA was unlawful and thus should be rescinded. So that was the reason that they provided. So DACA was the executive order dealing with the parents and DACA was about the children who were brought to the United States. Actually, neither was an executive order. Both were secretarial memos, right? So it's the DHS secretary who issues these memos. But right. So DACA was kids.

And then DAPA was the parents, deferred action for parents of Americans. These are parents of citizens and green card holders. And then there was also an expanded DACA that was part of the DAPA case. offered by way of explanation was this other litigation involving a very related but distinct policy and said, because we're worried that this policy suffers from the same legal infirmities. Actually, they said they thought it was unconstitutional. And I think then sort of backtracked from that. This policy needed to be rescinded as well, because it was likely to be struck down by the courts. And this rescission has been challenged by a number of different plaintiffs. and so the court

is now faced with three consolidated cases one out of california one out of dc one out of new york and so there are two big questions before the court one can the court review this daca rescission at all the administration argues it can't certain sorts of decisions including how to exercise discretion in the enforcement of the law are the sorts of things courts can't even second guess. But assuming... This is a sort of tale to Ruscio from last term when the court determined that partisan gerrymandering was a political question. So it's a, you know, I think you're right, they're related concepts. So that was a sort of constitutional holding. And Ruscio, here you have this part of the Administrative Procedure Act that actually says certain things are committed to agency discretion by law.

But I think you're right. The general idea that courts don't get to weigh in on every question. Sometimes the political process just has to have the last word, right or wrong. That's essentially the argument, is being used here to argue that the administration basically didn't have a real reason, give the true reason, or run a real process when it sort of decided to rescind this DACA policy. So those are essentially the questions before the court here. And the stakes, again, are incredibly high for all the people affected by this policy. And I should mention, again, this is yet another issue that Congress could fix if it wanted to and if we had a government that was functioning properly with all of the different branches. But alas. But let's leave it to the political process. Yes, that's scary. Okay. So I think there are a lot of other cases on the docket, but luckily,

we have other episodes in which we can talk about some of them. So we're going to, I think, segue to a couple of kind of broader themes. Melissa, I think you were maybe going to talk about some of the kind of personnel and sort of personal dynamics that we saw emerging between and among the justices this first full term of or first term of the new Gorsuch and Kavanaugh court. So I think this sort of falls under the rubric of court culture. So we all know that Justice Kavanaugh had a pretty explosive confirmation process. But his first year on the court, he was relatively subdued for a freshman justice. As we've noted in the past, a new person on the court really does change the dynamics of the way the court operates. It's a new person who has to get used to all of

the rhythms. Sometimes justices will be more energetic in their first term, especially with the oral arguments. Justice Gorsuch was that way, certainly. And Justice Sotomayor was also, I think, criticized for jumping in a lot in her first term on the court. So the first term is sort of, I think you get a glimpse of kind of personalities. What I thought was really interesting about Justice Kavanaugh is that he was relatively subdued for a freshman justice. He had some big opinions, the Flowers versus Mississippi, that was that Batson challenge that we talked about earlier in the summer. But he also got assigned some less glamorous opinions, which is also the fate of the junior justice. So I think what we should look for going into this next term is what is his sophomore year going to be like?

There will arguably be more hot-button issues to sink your teeth into this coming term, and I think we're going to get a better sense of what Justice Kavanaugh looks like. And, you know, I think we saw this term, we got a better sense of what Justice Gorsuch's personality as a justice looks like. He has always sort of talked about his libertarian leanings, but I think we saw over the course of this term that he's actually pretty committed to libertarianism across a wide array of contexts. So, you know, not only is he skeptical of government regulation and the administrative state, but he's skeptical of government regulation in the context of criminal justice. So I think those are some important themes that we saw. Justice Kagan really seemed to come into her own as an anchor of the liberal wing.

Justice Thomas came into his own as the elder statesman of the court's conservative wing. So I think there were lots of, you know, emerging personalities or, you know, broadening personalities in the course of this last term. What do you think? I mean, do you think Justice Kagan kind of came into her own? I mean, Justice Kavanaugh stayed under the radar, but maybe he won't stay there for long. But I was just really impressed with sort of Justice Kagan in full flower this term. I think she had an incredible term. I mean, partly, you know, she has been the junior justice for a really long time. So now she's not.

I mean, obviously, now she has both Gorsuch and Kavanaugh. So there's that. She's now got a degree of seniority on the bench. But I also think it's not that she had so many big majority opinions. Obviously, she had the dissent in Russo, which we talked about a lot on our first episode, which was, I think, an incredible, you know, maybe it'll be a significant opinion regardless of how many more decades she spends on the bench.

Oh, I think that's a dissent for the ages. Absolutely. But I think she's just, she's an incredibly savvy operator and she has, she seemed willing to craft all kinds of strategic alliances. She just, she's always been a massive power player in oral arguments. I think she's incredible on the bench. But you saw her emerging as a real power player on the page as well.

And I think something that was different is in prior cases, the opinions that she is usually assigned to don't tend to be the kind of like polarizing big ideological cases. You know, some of her super memorable opinions were about stare decisis in the statutory context or, you know, standing in the establishment class context, kind of more wonky lawyer issues. Whereas this partisan gerrymandering case, I think, reached a potentially broader audience and captured like the popular interest in a way that some of the other writings have not. Speaking of which, do you all know when the opinion, kind of oral opinion announcements get released? Because I would love to hear Justice Kagan's oral announcement of those cases. They're not out yet because I taught Rucho already and they're not out yet. Yeah, I think they're almost always out at some point in October of

the next term. So sometime in the next month, and maybe we'll play the actual audio because we've talked about it, but I think it might be really something for people to hear it, at least part of it. Definitely. So in terms of other things sort of, you know, in the kind of culture writ large, not the culture of the court, but the sort of legal and political culture that may intersect with the Supreme Court, it feels like we should mention that there are a number of potential kind of presidential power showdowns waiting in the wings. There really weren't any presidential. Well, there are lots of them out there. The question is how much the Supreme Court is going to get involved in them. Well, there's definitely a role for one person. Right. Well,

so, okay, we'll talk about impeachment in a minute. But let me just flag there are a couple of possible cases that the court might be deciding in the near term. So one is it may well rule on the constitutionality of the structure of the Consumer Financial Protection Bureau, which has a single head removable only for good cause by the president. And the argument is that that is an unconstitutional arrangement. And the Trump administration has weighed in in favor of the view that the current structure of the CFPB is unconstitutional. And I actually just want to flag a footnote from that brief, because it's a brief that, and it's a footnote that is not just about the CFPB, but has significant implications for independent agencies more broadly. So this footnote reads, if this court were to conclude that Humphrey's executor or Morrison requires upholding the removal restriction, so the constitutionally suspect part of the CFPB statute, it should consider whether those cases should be overruled in part or in whole.

So those are the cases that allow for administrative independent agencies to exist within the executive branch like the FTC that allow independent operators like independent councils who might investigate wrongdoing within the executive branch. So these are kind of checks on presidential power within the executive branch that the SG is asking the court to consider revisiting. So that is, I think, a very significant development. We will see if the court takes that case and if it seems it's not going to overrule these longstanding precedents. But this is now an open debate and there are particularly two new members of the court I think are going to be really receptive to those kinds of arguments. So there's more there. Let me just add really quickly that – because not everyone may know this, but in the SG briefs, the footnotes are where all of the tea is. I mean you'll see the concessions that the SG feels the need in its kind of duty of candor to the court to make, and these kind of

really fundamentally massive new arguments or points. So always read the SG's footnotes. Great. I just love to argue that a significant portion of the administrative state is unconstitutional in a footnote. Go SG. I mean, I think it is interesting, though. And what I think we'll also see a lot more this term and next term is a very different framing to cert petitions that have to do with agency, you know, issues of the administrative state and new arguments that have never been brought before the court because it wasn't worth it. And now it will be. And I think it could bring out some really great amicus briefs by ad law scholars, if any of you might know any of those. We'll keep everybody posted. Okay, so there are lots of other possibilities. I will just mention there are both state and federal requests for the president's tax returns being litigated in the lower courts. One or more of those could come before the Supreme Court. And I think the people are probably most interested in hearing about how – so we are recording this as the acting DNI has just testified about the whistleblower complaint, truly explosive

whistleblower complaint that we're not going to have enough time to really talk about right now. But what I'll say is it seems at least possible that as Congress, which is now, as we're recording, you know, 24 hours or so into a formal impeachment inquiry into President Trump, that Congress is going to want to get access to information and testimony and that the executive branch of the White House are going to resist those requests. And if that happens, whether we're talking about documents or people that the Congress wants to talk to, those disputes will likely be litigated and they could well end up before

the Supreme Court in the not too distant future. So that's a way that sort of this impeachment and the Supreme Court might intersect. As a general matter, the Constitution gives impeachment power to the House, the power to impeach, and then to the Senate, the power to try impeachment. And there is no role for the Supreme Court with, as Melissa alluded to, one significant exception, which is that if it is the president who is subject to impeachment, it is the chief justice who presides over the trial in the Senate. And that's happened before. I find this chief justice who presides over the trial in the Senate. And that's happened before.

I find this amusing because, of course, the president has got into a Twitter flame war with the chief justice, right? And the two of them have gone back and forth on whether judges are Obama judges or Trump judges. Not on Twitter. Chief Justice Roberts does not have a Twitter account. Well, not publicly. He might have a Twitter account. Someone in his chamber.

But the president has taken aim at the chief on Twitter. At the chief justice. I don't play tag, bitch. Can you think of a single person in Washington, D.C. who would less prefer to preside over impeachment proceedings than Justice Roberts? Like, I feel like he would rather claw out his eyeballs with his toenails than do that. I actually don't know. It seems like he did. I don't know. My perception is that he likes to stay away from the political stuff. I think that's right. I think that's right.

So I am actually, if there is a trial where Chief Justice Roberts presides, what I am really looking forward to if we actually do have an impeachment trial is the opportunity for Chief Justice Roberts to show us a little of his sartorial flair, to dig deep and give us a little more than the black robes. Because we all know that Chief Justice Rehnquist, when he presided over the Clinton impeachment in the 1990s, showed up in these amazing black robes with four golden bars on each sleeve. And it turned out that he'd been wearing them on the court since 1995. And he'd gotten the idea from a local Gilbert and Sullivan production of Ayalantha. And he decided that if it's good enough for the Lord Chancellor in Gilbert and Sullivan, it's good enough for me.

Amazing. And he just started, like, flexing this sort of sort of like fashion flex on the court. And the only other person I think to even come close is Justice Ginsburg, who has an impressive collection of jabots and collars that she wears. What's a jabot? We should explain what a jabot is. I don't know why, Melissa, but as you were talking about Justice Weintraub coming out in his pimped out robe, because I am anxiously awaiting Lizzo's submission for our theme music, I, in the back of my mind, got this image of him marching out, brushing off his shoulders to Lizzo's fresh photos with a bomb lighting. Or better yet, why men great till they gotta be great. Gotta be great. Exactly. I just took a whitey. Or better yet, why men great till they gotta be great. Gotta be great. Exactly.

I just took a DNA test. I'm sorry. Back to jabots. Back to jabots. So Justice Ginsburg has these jabots. And a jabot is a lacy collar that can be attached to a woman's bodice. So it's sort of like an accessory. And apparently she provides one to all of the new

incoming female justices or justices. Sotomayor was given one. Justice Kagan was given one. But she really is the queen of all of this. But she has some competition from across the pond. So we normally just talk about SCOTUS, but I think it's really important to bring in SCOTUS's counterpart in the UK, which is the UK Supreme Court. And this week, the UK Supreme Court had a really important decision. They announced that Prime Minister Boris Johnson's prorogary of Parliament, closing of Parliament, violated the law and was improper. And in reading that opinion from the bench, the Chief Justice of

the UK High Court, Baroness Hale, wore the best outfit I have ever seen. So she had this awesome black outfit with this sort of black stripe. I think it was a robe. It might have been a suit. I don't know. But the best part was that she had this enormous, like almost as big as my head, spider brooch, like a black widow encrusted with diamonds on her chest. It was almost like she had been watching Queen Elizabeth, who has an impressive brooch collection, and she just looked at Queen Elizabeth's brooches and was like, hold my beer, and went out and got this enormous spider brooch that she wore as she just basically brought Boris Johnson to his knees. It was so impressive.

We need to get a meetup between RBG and Lady Hale. Yes. And what I was thinking is that maybe somebody could create a jabot that looks like a fine-laced spider web with a massive spider on it. Yes. And I also feel compelled to note that I actually, my children have a spider. They have a pet spider at home whose name is, and I am not joking about this, Ruth Spider Ginsburg. I mean, can we get her to be like in Charlotte's Web? We need some merch for the spider. Is it big enough to wear a little

spider shirt? Jamie, between Arisa and Ruth Spider Ginsburg, you are just putting us all to shame. I'm so cool. Don't be jealous. And I should also mention that Lady Hale has a whole collection of brooches, just like RBG has her collection of jabots. So she's got this amazing centipede one. She's got one that's a giant frog that's climbing up her chest. She's got a big butterfly.

I mean, it's incredible. Totally agree with you. We need to do a meetup, a SCOTUS meetup. Do you think that they email each other other and are like game recognize game? I bet they know each other. They know each other. Lady Hale was at Cardozo a couple months ago on a panel with Justice Breyer, but Ginsburg was not there. Well, but Lady Hale is sort of the UK's analog to Justice Ginsburg because she too

was a women's rights advocate early in her career. She was the, she's the first woman to be the chief justice. Is she an icon in the same way? Well, I don't know if anyone's really an icon in this. I mean, I don't know that the UK high court has the same kind of, I don't know, sort of public view the way the Supreme Court does here. But all I know is I saw her with that brooch on and she was riveting. And I literally could not take my eyes off of her.

And I'm like, you are a bad, bad lady. I like you. I like you, Lady Hale. You are 100% that bitch. I was just going to – I'm not. She's like, I can't wait. I don't know.

Lady Hale took a DNA test and found out that she is in fact 100 that bitch she did okay so look i'm not i'm not a comparative constitutionalist but i just want to say i think they're doing it right on the other side of the pond right they issue this unanimous decision finding the government's reasons for doing something or obviously pretextual the decision is publicized right so everyone gets to watch the court read this opinion. And so as I am witnessing this, I think a little bit like, am I being like Gwyneth Paltrow and thinking like, oh, I need to get back to Europe. But anyways.

To be fair, they have no written constitution, so they can just make it up anything they want at any time. So that is a difference. I mean, some might say. Ours can too. Okay. anything they want at any time. So that is a difference. I mean, some might say. Ours can too. Okay, I feel like this is all the time we have left and I love leaving things on a high note like, you know, SCOTUS Fashion.

One other SCOTUS Fashion thing I just had to note. Laverne Cox showed up at the Emmys with a note about the Title VII cases emblazoned, I believe, on her purse. It was a bedazzled clutch. She also came with Chase Strangio, who's also arguing the case. I don't think arguing. Not arguing.

He's on brief in the case. On brief. For sure. So, yes, two big sartorial wins for Laverne Cox. Completely. Thank you so much for listening. We wanted to give a couple shout-outs to a few listeners. First, I wanted to say hi and happy birthday to Craig

from Texas. Craig's wife, who's a prosecutor in Texas, messaged me to say that Craig introduced the podcast to her a few months ago. And the best part of this is that Craig isn't even an attorney. He is a landscaper who listens to strict scrutiny while writing on the back of his mower. So hi, Craig. We hope you're still enjoying the show. And Leah, would you like to do our second super important shout out? I would love to. So we also need to give a shout out to strict scrutiny super fan and now officially recognized genius, that is a MacArthur Foundation genius, Danielle Citron, who is a professor of law at Boston University and a pioneering thinker about cyber civil rights and civil rights online. So she was recently awarded a MacArthur Genius

Foundation and has been incredibly generous in her support of the show. So just think, right, if you too write best in strict scrutiny swag, right, and publicly embrace the show, perhaps you will be recognized. I mean, I'm just going to note that she started listening to Strict Scrutiny maybe two months ago and now she's a genius. That's an incredible trajectory. People should draw their own conclusions. Draw your own conclusions.

Thank you also to our amazing producer, Melody Rowell. Thanks to Eddie Cooper for the music he's creating for the podcast. Thanks to Alec Leiphardt for our website design. Be sure to check us out on Twitter at strictscrutiny underscore. And please check out our website and grab some swag at strictscrutinypodcast.com. We will see you next time.