Strict Scrutiny - Election Anxiety: How the Outcome Could Affect SCOTUS’s Docket

Episode Date: November 4, 2024

After diving deep on a wild story about Justice Alito palling around with a German princess, Melissa, Kate, and Leah take a look at pending SCOTUS cases, including some that could be affected by the outcome of the election. They also take a look at a crucial case in the 5th circuit about Deferred Action for Childhood Arrivals (DACA). Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, please report. 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. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Melissa Murray. I'm Leah Whitman. And I'm Kate Shaw. And we've got a big episode for you today. We're going to begin this one with a court culture segment and trust us when we say we are covering the good, the bad, and the ugly. The first part of that court culture segment will include a discussion of our favorite

fanboy Sam Alito's recent efforts to up the ante on Supreme Court benefactors. Apparently, it's no longer enough to have an emotional support billionaire. Now, the hip kids have emotional support billionaire. Now the hip kids have emotional support royalty. We will then bring you up to speed on the court's latest interventions in the election since they obviously weren't going to let the Fifth Circuit have all the fun. And we'll discuss the cases that might be affected by the outcome of the election given that election day is tomorrow. And that will include a discussion of the Fifth Circuit argument in the challenge to the Deferred Action for Childhood Arrivals program.

And then we will get to previewing what's on tap right now. It's actually pretty light at the moment for the November sitting. And now let's turn to court culture on Sam Alito and the German Princess. So there have been an unfortunately large number of occasions where the country has been confronted with Hitler references, Hitler analogies, echoes of Nazism as of late. As the Supreme Court podcast, we thought maybe, just maybe, we might be able to avoid this. And Sam Alito had other ideas. So maybe we should back up for a second. Godwin's law or Godwin's rule is short for Godwin's law of Nazi analogies. It maintains that as law online discussion grows

longer, the probability of a comparison involving Nazis or Hitler approaches one. And it seems Godwin's law has come to the Supreme Court, kind of. Like it's not comparisons to Nazis or Hitler. There's been enough of that in the electoral political space. Instead, it's just that given the endless stream of stories about Supreme Court justices and the utter bedlam they are unleashing on the country, what's the probability that a story about a Supreme Court justice has some loose connections? Two Nazis or Hitler? Apparently not zero. JS So apparently not zero.

So amidst the many intersections in recent weeks between Trump world and Nazism, including reports from former White House Chief of Staff John Kelly that Trump wanted his generals to be more like, like quote Hitler's generals and the deeply disturbing rally at Madison Square Garden. The New York Times and specifically reporter Abby Van Sickle at the Times released a story about friend of the pod and noted feminist Sam Alito and some of the new friends he has made. Specifically, Samuel Alito is apparently now close personal friends with one Princess Gloria von Thurn und Tuxus of Germany. Did I pronounce that properly, Melissa? Yes.

This is literally my Roman Empire. Yes, I've been waiting for this story my whole life. So listeners, if you don't know, and why would you, Princess Gloria is something of an interesting story for royal watchers. She used to be kind of a baddie in the 80s. She burst onto the scenes in the 1980s after marrying the much older Johannes, Prince of Thurndt und Texas. Vanity Fair christened her Princess TNT. It's a play on Thurndt und Texas,

but it was also a play on the fact that her personality was like explosive on me. She had all this hair. She was really into partying. She befriended Michael Jackson. She partied with Mick Jagger and Andy Warhol and rode Harley-Davidson's. She basically did all of the stuff. She was brat. She was brat. She really was. And now though, her views have changed or shall we say evolved. So like any good party girl from the 1980s who had such a great time in the 1980s, she's now pulling up the ladder for everyone else. She now counts herself as an admirer of Hungary's Viktor Orbán. She's also notably a friend of one Steve Bannon. So make what you will of those friendships. And she's also embraced a pro-natalist perspective. So she is full on forced childbirth. And that is

perhaps the connection that drew her obviously to one Samuel Alito. So the time reports on the origin story of this now epic friendship. So Princess Gloria evidently met Samuel Alito. So the Time reports on the origin story of this now epic friendship. So Princess Gloria evidently met Samuel Alito at a Catholic conference in Rome, and she, quote, immediately liked him, and especially his wife, Martha Anne, whom she described as, quote, very fun, bubbly. Do we think the princess might also be very fond

of flying flags? The story doesn't say, but it really feels like the, it does, but it feels like she has big flag energy from this story. The story did have many red flags in it. It did. So by implication, yes. Specifically though, Virgonia flag, red, Virgonia red flag energy.

So I think maybe for the follow-up, but my suspicion is yes, very much so. Well, the princess told the New York Times, quote, "'I have admiration and great respect for the judge. And I have respect for his wife, who is the manager behind the man, end quote, which we already knew, but that's fine. The princess, as a guest of Samuel Alito, toured the Supreme Court, where she posed for a photograph

with Justice Alito and America's favorite father of daughters noted feminist and basketball coach Brett Kavanaugh. And the princess in return invited the Alitos to the annual music festival she throws each summer at her palace, as one does. And so the Alitos attended this festival in the summer of 2023. And according to the Times, this exposure to royalty, quote, opened up a world of European nobility to the justice and help the princess promote her causes and her festival, end quote. Because obviously, that's what true constitutionally

permissible friendship is for, quid pro quos. Don't ask what your friends can do for you. Well, actually do ask and find out. And then demand it. So at said festival, the Alitos, quote, stayed in palace rooms decorated with original works of modern art, and meals and lodging at the palace were covered by the Princess, end quote. The Princess told

the Times, I think, quote, Of course I didn't charge him any expenses. That's rude, end quote, because if anything is rude, it's Supreme Court ethics. How rude. The Princess explained her friendship with the Alitos in more detail saying, quote, I met him as a Catholic and I realized that he's a judge who is pro-life, end quote. I was surprised by this because I was working under the assumption that justices aren't really supposed to have political views, but stupid me, like why would I assume that? I did appreciate one thing about the princess, which is she was pretty unfiltered in this conversation. So she learned some things.

Wait until we get to her political views. Okay, so the princess went on in this conversation with the Times reporter to describe her anti-abortion views in openly pro-natalist and pretty JD Vance-esque really creepy terms. So she said, quote, the only thing I care about in politics is that somebody is fighting abortion and helping reproductive rates go up, close quote, because that's what she understands Sam Alito to be doing. And it wasn't just the Princess's palatial music festival the Aletos attended during this vacay. No, and this is where Godwin's Law, which Leah was alluding to earlier, kind of comes in. So while on this vacation, Justice Alito told fellow guests that he planned to attend the Beirut

Festival celebrating the work of Richard Wagner. Tickets for the Beirut Festival cost about $500 for premium seats. So definitely not for the plebes. And in addition to being incredibly expensive, they're also highly inaccessible. People wait for years to get a spot at the Biroid Festival. But when you know people and when you know Princess Gloria, you can find a way in. And indeed, the princess secured a spot at the festival for the Alitos to attend as her guest. And this is where Godwin's law comes in. Because listeners, do you know who attended the Bayreuth Festival every summer from 1933 until 1939? Yes, that's right. Hitler, Hitler, who held out the works of Richard Wagner as emblematic of

the Nazi regime. Wagner engaged in openly racialist, anti-Semitic writings and advocacy, very pro-Reich in his oeuvre. But Hitler loved this stuff and he loved going to Bayreuth. And it's a great music festival, I guess. But if you were a sitting justice of the Supreme Court trying to avoid really unsavory associations, you might just get the tickets to Taylor Swift and skip Bayreuth, right? Like maybe, especially if they're tickets that are available as largesse from a European princess. But what do I know? In any event, lest you think that Samuel Alito's royalist bent is just a one-off, let's do another detour. This time through some reporting that recently came out from New York Magazine. According to New York Magazine, back in 2017, Justice Alito was, wait for it, knighted by

pledging an oath to the sacred military Constantinian order of St. George. The order is recognized by the Vatican, but the knighthoods are administered privately. And as part of this new knighthood, Justice Alito got a cape, a blue cape that is valued at almost a thousand dollars and that is made by the Pope's tailor. I personally would have held out for die work wear guy and his analysis. I want his analysis on the cape. Yeah. Well, I want Alito to wear it on the bench so that we can all form our own opinion. I mean, I think depending on this election, wearing this robe, that is going to be a sign of dark times to come. What about an inauguration? Oh God,

Kate, stop. For the State of the Union. State of the Union. He doesn't come to State of the Union. That he won't do, but inaugurations he attends. He might come if he could wear this cape. Exactly. It depends. It all depends. In any event, other members of the sacred military Constantinian Order of St. George include Michael Lassivita, the VP of the Catholic Media Association and the brother of Trump's campaign manager. And the knighthoods are administered privately by the Bourbon to Sicilies family, which as New York Magazine reports, is the subject of a

neo-Bourbon monarchist revival movement in southern Italy that seeks to return this noble family to power over its ancestral kingdom. And interestingly, American neo-Bourbonists have a blog that advocates for, quote, a return to traditional religious and aristocratic principles, end quote. What's that go wrong? This is fabulism. Like we are completely, I don't know what kind of fanfic it is, but it's some kind of like weird ass royalist fanfic, but all we're doing is describing the reporting.

This is so insane. We are describing the family that administers the knighthood that Sam Alito became part of. And we're recording this episode on Halloween and it's already creepy AF. I just wanna say, Meghan Markle and Elena Kagan have the opportunity to do the funniest thing ever. Meghan Markle, please send some of that

American Riviera Orchard jam dog biscuits, send them to the liberal justice. Either they do some freelance nighting. Like she should do some, she should freelance night the liberals of this framework. Is that? Because evidently like anybody, any self-proclaimed order can, I don't know, just like decide to night people. Let's do it. The sacred order of strict scrutiny, you night some people right and left. Commanders one and all. That's right. So there is more, we cannot cover all of it, but there's a little more I think I

can't resist sharing from this New York magazine piece. So apparently supporters of this Bourbon to Sicilies outfit, Bourbon to Sicilies are monarchists. Some of them have a history of links to the American right, going back to the literal Confederacy. Some of their supporters fought for of links to the American right going back to the literal Confederacy. Some of their supporters fought for the South in the Civil War. Some of them actually still fly and adorn themselves with Confederate flags.

Oh gosh. Yeah. So again, as fringy- What's printed on the inside of that cape? Oh, good question. Yes, yes. So as fringy and insane as this all sounds, this, evidently, according to at least a historian who was quoted in the article, this Constantinian order and its religio-politics are actually

pretty important to some people in southern Italy and individuals in the diaspora of southern Italian descent, as is Justice Alito. So this is not saying it's not fringy, but this is actually like an outfit with some cultural power. And anyway, this is the order into which Justice Alito has recently been walking. I feel like every time, every time we try to explore the dark recesses of Sam Alito's mind and say like, here is the kind of next level bedlam that lies in there, something crazier emerges, right?

I do not wanna contemplate what we do not yet know. I know. Eyes wide shut, that's all I'm saying. I've seen eyes wide shut. So back to the first royals scandal of this cycle, the Princess TNT1, as the New York Times reports, the princess apparently hasn't spoken with the Alitos recently, although she told the Times as the Times reports, quote, she would love to see

them the next time she is on the East Coast, end quote. Perhaps because of this loneliness, the Princess is apparently in the market for other friends and guess who's on her list? Quote, justice Thomas, because he looks so nice. End quote. Stairs in Anita Hill, like so nice. Speaking of nice. You're gonna have to compete with Harlan Crow.

That's all I gotta say. I mean. Does he have a palace though? Like her palace? I don't know. He has that hobbit, that hobbit. He has that Adirondacks ranch. But I got to say. I mean, does he have a palace, though, like her palace? I don't have that hobbit that hobbit has that around that ranch. But I don't know. Sometimes you want to mix it up.

So I would imagine that an invitation will issue. And I can't imagine Justice Thomas can drive his RV there. Can he drive his lamp out there? Do this. He does love those regular folk, I hear. All right, so back to our agenda. We promised the good, the bad, and the ugly, and we are now going to turn to the court and the election. Several emergency applications related to the election have already made their way to the court.

There will no doubt be more, but those that have already come to the court, we wanted to bring you up to speed on now. So some of you may recall the court has already acted on an application out of Arizona. The court allowed Arizona to enforce its proof of citizenship requirement for people who sought to register to vote using state forms. Since that application and response, other applications have made their way to the court. So one out of Michigan, another out of Wisconsin, those two have been resolved. But also a third out of Virginia, also resolved. That's where, you know, we come to the ugly, which we will describe in a minute. And there is a fourth case out of Pennsylvania. I'm still trying to think, like, was the good part of the good bad and the ugly Princess Gloria? Is that where we are? Gloria in the 80s. Her time

in the 80s. Exactly. in the 80s. Exactly. That was the good. We briefly forayed until good. That's it. OK. All right. The Michigan and Wisconsin cases that Kate mentioned relate to Robert F. Kennedy Jr. and his many efforts

to take his name off of the ballot once he decided that he no longer wanted to run for president when it became clear that his campaign was actually hurting the electoral prospects of one Donald Trump. So Robert F. Kennedy Jr. asked for his name to be removed from the ballot in various ways in several states and some state courts granted these requests like North Carolina, for example, in a decision that shortened the window for early voting in order to accommodate this.

But other courts denied his request, including those in Michigan and Wisconsin. And he then asked the United States Supreme Court to intervene. On those applications, the court denied the Michigan application over a dissent by Justice Gorsuch. Makes me wonder whether the brain worms have come for Neil. Maybe we'll be monitoring that situation.

The court denied the Wisconsin application over no noted dissents. The Pennsylvania and Virginia applications present different issues. The application out of Virginia related to the state's attempt to purge its voter rolls. So at the initiative of Republican Governor Glenn Youngkin, Virginia removed peoplege its voter rolls. So at the initiative of Republican Governor Glenn Youngkin, Virginia removed people from the voter rolls where the state

says it determined that the state didn't have adequate information corroborating their citizenship from DMV Department of Motor Vehicle records. So the federal government and some civil rights groups sued Virginia saying that these purges violated a federal statute called the National Voter Registration Act of 1993, which imposes a very clear 90-day period prior to an election during which states are not supposed to be pushing people off of voter rolls. And the reason for this period is so that any eligible voters who are wrongfully eliminated have a chance to correct that and can still do that in order to participate in the election that is pending.

So states are certainly able to clean and maintain their voting rolls, but they're not supposed to do it in the 90 days preceding an election. So a federal judge ruled on this challenge, ordering Virginia to restore some voters. The number was about 1600 who had been removed and to stop the process of removing voters from the rolls in light of the approaching election. And there's no question that some of the people of Virginia removed from the rolls are citizens. Some of them are lifelong Virginians. And Virginia asked the Supreme Court to pause that lower court ruling. And the Supreme Court did so by an apparent vote of six to three with all of the Republican justices in the majority and the three Democratic justices dissenting.

And we should say that- Virginia is not for democracy, look. No, Virginia not for democracy, apparently. And the justices did this notwithstanding the text of the federal law, which Kate alluded to. It requires that, quote, any program, the purpose of which is to systematically remove the names of ineligible voters be, quote, complete, quote, not later than 90 days prior to the date of a primary or general election

for federal office, end quote. So it seems like the Supreme Court took a page from the Fifth Circuit, which recall last week said that while dictionaries, aka textualism, are ordinarily useful to the project of determining the meaning of federal laws. That's apparently not always the case, such as where dictionaries, words, and textualism allow people to vote. So can I ask a question? I know that we've talked a lot about Purcell and the way that courts intervene at a point in time when an election is imminent or even ongoing. How

does that impact this? Because on the one hand, maybe it seems like the court is actually following Purcell, but it doesn't seem like it's following it in a way that would reflect the spirit of Purcell, which is about protecting the integrity of the electoral process from official action. Supreme Court was thinking when it reversed these lower court, put on hold these lower court orders because it didn't freaking tell us, right? It has an unreasoned order with no explanation in the face of these reasoned lower court opinions that said the statute is clear, this violates it. But I have to imagine that the only justification that could at least facially supply a reason that the court could have done what it did here is they do think that some version of Purcell applies because what the federal courts did was to change what was happening close to an election.

But that is just an insane way to understand Purcell if in fact that's the understanding they're operating under for, you know, I think a couple reasons. One, the statute here like has its own version of a no, you can't interfere prior to an election rule. That's what the 90 day period is. And two, it would just like seem to give cover to any state official that wanted to mess with elections if they were doing it close enough to an election because any federal court seeking to block that action would run into the wall of Purcell and the Supreme Court saying like, no, no, you can't because it's too close to an election.

Like it would just eviscerate meaningful vote. I mean, is that is that how you understand the case, Leah, too? Yeah, well, it's weird because you have this statute that as you say kind of channels this Purcell idea of states shouldn't be doing things too close to the lead-up to an election in order to disturb, you know, conduct of the election and confuse voters. But then, you know, you have a state doing this thing, ostensibly violating the statute, and to the extent the Supreme Court is invoking Purcell, they're basically giving states a green light to act illegally, to violate federal law,

maybe the federal constitution, in the lead up to an election, so long as they do it sufficiently close to the election, that a court wouldn't intervene, and that just seems nonsensical to me. But again, we're just like purely speculating, which is one of the many enraging things about what the court did here because it didn't tell us. But the predicate for what Virginia at least did is clearly about this fear mongering about

non-citizens voting, which is a claim that Trump and many allies have been pressing despite the complete absence that this happens with any kind of frequency. This is definitely more of a vibe, but it's a vibe that is essentially the new justification that they are going to use to, you know, implement various kinds of restrictions on voting. We should note that as I think egregious as this Supreme Court decision is, and as the decision by the Virginia officials

to try to do this in the first place in the face of this clear federal statute, in Virginia, they have same day voter registration. So if you have been erroneously removed through this purge, which 1,600 people were removed, many or most of them, clearly erroneously, you can still register and vote same day. So this should not be a deterrent to voting. But of course, that's not a complete answer because this would increase the time that it takes to vote. And so to say like, oh, no harm, no foul, you can always just register same day, is pretty willfully blind to the burdens that that might impose on voters for whom it could be difficult anyway to make the

time to vote. But all that said, what the court did here in Virginia is probably not going to affect the outcome of at least the presidential election. I don't know, Virginia has had some very close state legislative races. Remember a few cycles ago there was a coin toss to determine the winner of a seat that ended up determining control of one of the chambers of the Virginia legislature. So 1600 votes is not nothing when it comes to these smaller races. And so I don't know what effect in the final analysis it's going to have even if it doesn't affect the presidential election. So finally, there's an application arising out of Pennsylvania, which is a challenge to a decision by the Pennsylvania Supreme Court

finding that voters need to be allowed to cast a provisional ballot in person if their ballot, the absentee ballot they have completed, is thrown out because they made an error in casting that ballot. Pennsylvania has notoriously and actually really confusing practices for absentee ballot voting. There are two separate envelopes. If you do not return your absentee ballot with the two separate envelopes, separate

and apart from the issue of dating the outside of the envelope, if you make an error and don't have both of those envelopes, in particular the inside envelope, which is known as the secrecy sleeve, that vote will not be counted. So most counties in Pennsylvania were already allowing people to cast provisional ballots and to have those ballots counted if they made an error in their absentee ballot. And that's what this litigation was about. And the Pennsylvania Supreme Court in a divided decision held that all voters in Pennsylvania need to be permitted to vote by provisional ballot if they make an error that results in the disqualification of their absentee ballot. It's not a disruptive decision because again it basically aligns with what the Pennsylvania local authorities

were doing anyway in most places. But of course the RNC has now run to the Supreme Court and asked them on basically two different grounds. One that this is a Purcell problem, right? We were just talking about this idea in Virginia that Purcell means the Pennsylvania Supreme Court could not clarify the rules in the way it did here, which I think, as I said in the Virginia example, just can't be right. Melissa's colleague Rick Pildes had a really good post about this on the election law blog.

But states will get tons of legal questions in the next few days and on election day in particular, and it can't be that they can't ever answer those questions when there is an ambiguity or inconsistent practice that needs to be resolved in state law. So I just, the Purcell argument seems to me complete non-starter, and they're also making the argument that essentially the state Supreme Court issued an interpretation of the Pennsylvania statute and informed by the Pennsylvania Constitution that was so improper that it implicated this independent state legislature doctrine. I guess we now have to call it after Moore versus Harper and not theory, but the idea

that there are limits on how state courts can interpret state laws having to do with federal elections and that the Supreme Court gets to enforce those limits. The Supreme Court denied the Republican National Committee's request to stay the Pennsylvania Supreme Court decision that allowed voters to cast provisional ballots. But, and there's always a but, Justice Alito, joined by Justices Thomas and Gorsuch, wrote separately to say that we shouldn't read too much into that decision. That is, we shouldn't rule out the possibility that the court might whip out the independent state legislature theory slash doctrine in another case involving this election, perhaps even out of Pennsylvania.

So Alito's writing noted that the Pennsylvania Supreme Court's opinion technically concerned just two votes that were cast in the long completed primary election. So staying that decision would not grant the RNC the relief they wanted, which is to prevent Pennsylvania election officials from allowing provisional ballots in the ongoing underway election. And Alito took pains to say he and the other justices were not rejecting the RNC's independent state legislature theory claim on the merits.

Indeed, he called the Pennsylvania Supreme Court opinion, quote, controversial. So the TLDR is the Supreme Court isn't going to say now that Pennsylvania officials can't allow voters to cast provisional ballots. But it's unclear if the Republican justices, or at least some of them, are kind of lying in wait to see whether the margins in this election are litigation proof before they potentially step in.

But why might the court be so exercised to intervene in these matters? This seems like a good time to talk about what's really at stake in this upcoming election. And again, these stakes have been made even more clear over the last couple of weeks. So we had a new story from ProPublica about even more women who have died because an abortion ban delayed their access to needed medical care. The latest story focuses on Jocely Barnica, a young woman who suffered a miscarriage at 17 weeks

of pregnancy in Texas. And the hospital, because of Texas's abortion restrictions, had to wait before the medical professionals there could perform any kind of abortion procedure. And again, in the case of miscarriage, it is standard operating practice to perform what is known as a D&C or some other abortion procedure to remove the remains of the fetus

and any other fetal tissue from the uterus in order to prevent sepsis and also to allow the woman to preserve her fertility going forward. But in this case, Jocely Barnica had to wait 40 hours in order to receive miscarriage care, and that delay proved fatal. She suffered a hideous infection because of the accumulated fetal tissue in her body,

and that infection spread throughout her body, and she died three days later. When she died, she was survived by a daughter who at the time was not even two years old. And we should note that these events Melissa was just talking about were actually in 2021. So this is before Dobbs, but it was after Texas had nullified Roe vs. Wade

in that state through SB8, the Texas bounty hunter law. And actually the date of this miscarriage was September 3rd, 2021, which was just two days after the Supreme Court allowed SB8 to go into effect, right? Its fatal consequences were that swift. And as the ProPublica story notes, story notes, they are looking back on medical records from 2021 because state maternal health commissions, their review is so delayed, we probably won't know about and won't hear about many of the stories

that have been happening under DOBS for a while. And so ProPublica is trying to look into some of these cases and medical records to tell us what is happening in the aftermath of jobs in the absence of abortion protections. So the piece draws a comparison between deaths in the United States that have resulted from abortion bans and deaths in other countries that

resulted from abortion bans. Because in other countries, those deaths spurred the countries to reform their abortion laws so as to prevent women from dying because they were denied medical care. The piece drew parallels between Barnacastore and an Irish woman, Savita Halla-Pavadnar, who died from sepsis after being denied an abortion when she experienced a miscarriage at 17 weeks and the country was so horrified by what happened, they revised their strict abortion laws. But will that happen in the United States?

That is part of what voters are deciding in this election and will decide tomorrow. If you haven't voted before today or tomorrow, vote tomorrow in person. In a recent interview, the president of the Texas Medical Board, Dr. Sharif Zafran, said, quote, there's nothing we can do to stop a prosecutor from filing charges against physicians. And ProPublica reports that when asked what he would tell Texas patients who are miscarrying and unable to get treatment, that they should get a second opinion

and that they should vote with their feet and go and seek guidance from somebody else. So the question is, is that the country that we're going to live in? And might that general state of affairs obtain nationwide, not just in a subset of the states? Those are the stakes of this election.

And indeed, perhaps to stave off an election where voters could actually express their desire to live in a country where women are not dying because state laws prohibit doctors from offering them life-saving medical treatment, a newish political action committee has been running ads that obscure what a potential second Trump presidency would mean on the question of abortion. So this new PAC calls itself the RBG PAC, and that is actually ghoulish because you know the RBGs whom they are referring.

In any event, the RBG PAC is running ads that misleadingly suggests that Donald Trump does not support an abortion ban, even though he has one, never vowed to veto an abortion ban, or two, he has never disclaimed the prospect of enforcing the Comstock Act as an abortion ban. And again, that would not require congressional action at all. There would not have to be a new law. All you would need is a new attorney general willing to enforce that long dormant law from 1873. Number three, Trump has never disclaimed any interest in having the FDA reverse its approval of Mephistone, one of the drugs in the current two-drug medication abortion protocol. So these are all very real possibilities

in a second Trump presidency, an abortion ban that he doesn't veto, the enforcement of the Constock Act, and a reversal of the FDA's rules around its approval of Mifflipristen. And of course, at a minimum, a Trump presidency means that the federal government will not do anything to stop states from enforcing their abortion bans that are literally killing women, including enforcing

the terms of that federal law, EMTALA, that states have to provide the stabilizing treatment, even if it is an abortion, in these life-threatening circumstances. And as a reminder, there is still litigation happening in federal court over the meaning of EMTALA in states like Texas and Idaho that have laws that conflict with the guarantees of EMTALA. So there is litigation happening in the Ninth Circuit after the Supreme Court basically took an off ramp in that case.

There is also litigation that is going to kick off in Idaho's state court that is quite similar to the Zyrowski litigation in Texas that we've covered extensively. So women who were denied abortions that were medically necessary are suing the state seeking clarification that there is a meaningful medical exception in the state law.

So we're going to keep a close eye on that case as it proceeds. So we have talked about how the election could affect the Supreme Court, including possibly its personnel. Justices Alito and Thomas seem to us likely to step down in the event Trump wins the second term, allowing Trump to replace them with 40-year-old forced child birth enthusiasts.

You like securing a hyper-conservative Supreme Court for decades, moving the needle closer to fetal personhood, the theory that would have the courts ban abortion nationwide. And some of the cases the court is currently hearing could themselves change with the election. One is Skirmetty, scheduled to be argued in December. That's the case challenging the ban on gender affirming care for minors. And this case could be affected because it was actually the United States that sought certiorari, the Supreme Court review in the case. It was the

US under the Biden administration that asked the Supreme Court to review the lower court's determination that the ban on gender affiraffirming care for minors was likely constitutional. It's really difficult to imagine a Trump administration continuing in the current posture that the federal government has adopted vis-a-vis Skirmetty. So that's a major change, I think. If there were a Trump presidency,

I just don't think we'd have the federal government taking the same approach. In a similar vein, it's also likely that the ghost guns case might also be one of those cases where the federal government's position would be changed because of a change in the administration. As you know, the Biden administration regulation classifies ghost guns and ghost gun kits as firearms for purposes of federal law.

It's possible that under a Trump administration, if that happens in the election, a Trump administration could change that position and agree with the lower court that the regulation is invalid. So there's another possibility of real and meaningful change that would happen just because of the election. And of course, there are some lower court cases that could be affected by the election as well,

including the currently ongoing challenge to the Deferred Action for Childhood Arrivals Program, which we're now going to cover. So in early October, the Fifth Circuit heard argument in the ongoing challenge to DACA, which is the program begun under President Obama. That program announced the administration's plans to forbear immigration enforcement.

That is not to remove certain people who came to the US as children and also allowed DACA recipients to apply to obtain work authorization. So this case has a really complicated procedural history. It has been already up at the Fifth Circuit. It went back down to the district court. But the short of it is the district court has once again attempted to declare DACA illegal, although they stayed that decision as to current DACA recipients. But the issue that's now up at

the Fifth Circuit is whether the DACA program is unlawful and whether the court is going to force the administration to end it. So that is the oral argument that the Fifth Circuit heard early in October. And the case has really bad, scary vibes. The one slightly positive note is that Texas appeared to agree that the stay in the case should remain in place while the case is being litigated. That is, unless and until the Supreme Court takes up the issue, DACA recipients will be able to remain in the program.

If the court takes up the issue, the first question it will have to address is the question of standing. And Judge Higginson, who was nominated to the Fifth Circuit by President Obama, focused on how the state's theory of standing and injury really fell apart insofar as it seemed to presume that DACA recipients would leave the United States if the program ended. Essentially, he asked in so many words, where the F is there any evidence that DACA recipients would leave the country?

The only home that they have actually known is the United States. So why would they leave if DACA ended? So there we are on the injury question. He also deployed the Supreme Court's recent decision in another case also captioned United States versus Texas. That's the case that involved Texas's challenge to President Biden's immigration enforcement priorities and in that case an 8-1 decision by Justice Kavanaugh found that Texas did not have standing to challenge those enforcement priorities and here's how Judge Higginson invoked that case. My, listening to the government, my concern is that IP is a huge sea change in three ways. So I'll just ask you about these three questions.

First, I mean most obviously, Justice Kavanaugh is rebuking our court with eight justices to one saying that hereafter, states cannot use district courts to usurp federal immigration policy. So he also tried to import a little history and tradition into the analysis, trying to hold Texas to the standard that abortion providers were held to in order to prevail in their case. So my question to you is, what would you

point to as the history and tradition that allows states to go to a district judge to stop nationwide foreign policy and immigration? And in response to this question, the advocate brought up the 2015 case challenging DAPA, the Deferred Action for Parents of American Citizens program. And Judge Higginson

responded, no, I asked for some real history and tradition, bro. That was a paraphrase. Yes, that was. So as Leah suggested when she was introing this case, it's a really frightening case, you know, the very frightening possible outcome. This is a program that is now the result of notice and comment rulemaking, the kind of legal infirmities that the Fifth Circuit found with the related program. DAPA had to do with how the program was constituted.

That argument no longer applies here, and yet both Texas and, you know, the district court have just engaged in this kind of whack-a-mole game where whatever the administration does, they are so deeply hostile to DACA that they will find a legal theory that they can latch onto to invalidate it and it just does feel like that's what the Fifth Circuit was looking for too. And about 10 minutes-ish into the argument, one of the Republican appointees on the court, Judge Clement, seemed to signal that that is where the Fifth Circuit might be headed in this case. So let's play that clip. I have a question about the potential injunction. If we're inclined to uphold the district court's

injunction, should we limit it to Texas only? And if so, is that really feasible to limit it just to one state? So if that's what happens in the Fifth Circuit, we could see a frontal challenge to DACA at the Supreme Court sometime soon, although it's also possible that if there's a Trump administration, they might actually go through the process of trying to rescind using notice and comment rulemaking DACA and maybe put the litigation on hold. But very, very scary prospects. All right. Now with all of that taken care of, let's get down to our other business, previewing what the court will hear in its upcoming November sitting. And I'm not going to lie, with the election looming, it is very difficult to focus focus on this sitting but we will just give you a brief overview of the cases. First of them is

EMD sales versus Carrera, a case about the burden of proof to establish an exemption from the Fair Labor Standards Act. So you know the Fair Labor Standards Act sets forth certain wage and hour requirements and an exemption means that employees who are exempt wouldn't be entitled to those protections. And the question in this case is whether the burden of proof for employers is a preponderance of evidence or clear and convincing evidence, which would be a higher burden. So the case could make it easier for employers to establish that the FLSA, which guarantees again, overtime pay, minimum wages, doesn't apply to particular categories of exempt employees. Great. Next up is Velazquez versus Garland.

And this is an immigration case about how to calculate the time period or deadline for voluntary departures. Voluntary departure is when an individual removes themselves rather than being deported from the United States. It's a remedy or process that's offered to some people in immigration proceedings, but not to others. And if it's granted, you have 60 days

to voluntarily depart or file a motion to reopen your case. But there are stiff penalties for failing to depart within the allotted time period, including fines and ineligibility to obtain a bunch of important forms of immigration relief. The question here is, when the voluntary departure period ends on a weekend or a public holiday, are you then in violation of the voluntary

departure rules if you file a motion to reopen your case on the next business day? If you file a motion to reopen, you are essentially asking immigration authorities to reopen your case such that you don't have to voluntarily depart while the motion is being adjudicated. Now, the general default rule is that legal deadlines falling on weekends or public holidays carry over to the next business day. It's in the civil rules and the Supreme Court's rules. So the question is whether that default system

applies to immigration law. Next up is delegati versus the United States, which is about whether a crime that requires proof of bodily injury or death, but can nonetheless be committed by failing to take some kind of action, has as an element the use or attempted use or threatened use of physical force such that it qualifies as a violent felony under ACCA, the Armed Career Criminal Act. ACCA imposes enhanced penalties on certain people who are convicted of unlawful firearm possession, those

with three or more prior convictions for violent felonies. And ACA defines violent felonies as, among other things, crimes that have as an element the use, attempted use, or threatened use of physical force. And the kinds of prior convictions at issue in delegati involve second degree murder or manslaughter, where someone might have acted recklessly or with what the law calls a depraved heart.

And one of the ways the statutes can be violated is by failing to take an action and that failure results in the death of another. The defendant argues that if someone fails to take action, say by not providing medical care, the bodily injury or death that results isn't from force, but instead from some biological process that caused the individual's death. And as the, you know, federal public defenders argue in their amicus brief, and it's worth keeping in mind, even if these crimes don't constitute crimes of violence triggering at this mandatory minimum, courts can obviously still take them into account at sentencing and sentence the defendant toward the, you know, applicable statutory maximum. Okay, another group of cases to briefly briefly note.

First, Wisconsin Bell versus United States, XREL Todd Heath, which is about whether reimbursement requests submitted to the FCC's E-Rate program are claims under the False Claims Act. Second, Advocate Christ Medical Center versus Becerra, which is a case about whether the phrase entitled to benefits includes everyone who meets basic program eligibility criteria whether or not benefits are actually received. And this is a question that affects reimbursement rates under Medicare. A case from, I think, two terms ago, Becerra versus Empire Health had said that the phrase entitled to Medicare Part A benefits included all people qualifying for Medicare. This case involves a question left open by that case, which is whether entitled to SSI

benefits includes all who qualify for benefits, including those who may not receive them. The court will also hear next week Facebook versus Amalgamated Bank, which is about whether risk disclosures are false or misleading when they don't disclose a risk that materialized in the past. In addition to the Facebook case, the court will also hear NVIDIA Corp versus E. Ullman, J.,

or Fonder AB, which is about whether plaintiffs alleging Sienta, which is a mental state, a guilty mind, under the Private Securities Litigation Reform Act, based on allegations about internal company documents, must plead with particularity the contents of the documents and also how to satisfy the falsity requirement, whether that can be done by a varying and expert opinion.

So we wanted to end by sharing an additional extra clip from the oral argument in Royal Canaan versus Wurlschlager, the case on federal jurisdiction argued in October. And this clip came to us on a recommendation from some students at Maryland Law who listened to the argument as part of their civil procedure study group. And so we wanted to play the clip they were amused by so you can enjoy it as well.

You think that the courts of appeals read our decisions differently than we may? I was on a court of appeals for 15 years. If I saw a strong dictum in a Supreme Court decision, I would very likely just salute and move on. But here, we have more of an obligation. It depends, just to sort of my heart.

Once again, this seems to underscore that absence did not make anyone's heart grow fonder of Sam Alito and his penchant to destroy precedent in the name of whatever game he is playing, maybe to preserve aristocratic rule, I don't know. And obviously this is a delightful clip. Sometimes we're not able to highlight absolutely everything from an argument, but we appreciate your notes calling our attention to certain clips. All right. Let's talk about election coverage. Kroeger's Daily Pod, What a Day, will be fresh in your feeds with Jane Costin breaking down what you need to know in 20 minutes. Pod Save America will be releasing new episodes starting next week with in-depth analysis of the

latest news every morning until the race is called. And in case the Trump campaign is feeling loose with their legal challenges, we will be stopping by shows across the network to unpack breaking news. Plus, we will be dropping bonus episodes on the feed for those who want more. You can find all of this on your favorite podcast platform and on YouTube. Also about the election, did you know that when voters

cast a ballot by mail, if a requirement isn't met, like a missing signature, it gets rejected? And if a voter doesn't take action to cure or fix their rejected ballot, their vote doesn't get counted? During big elections, thousands of mail-in ballots are often thrown out. And right now, thousands of voters' ballots are facing these issues and a ton of them may not even be aware of those errors or the deadline to cure them. And that's why we need your help reaching these folks, because this election is going

to come down to a tiny margin in a lot of these key battleground states. The ballots we can cure right now could be the tipping point in taking back the House or stopping a Donald Trump presidency. Take action right now and help cure ballots at votesaveamerica.com forward slash cure. This message has been paid for by Vote Save America. You can learn more at votesaveamerica.com. This ad has not been authorized by any candidate or candidates committee. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lipman,

me, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell, Michael Goldsmith is our associate producer. We get audio support from Kyle Seglen and Charlotte Landis. Our music is by Eddie Cooper. Production support comes from Madeline Herringer and Ari Schwartz. Matt DeGroote is our head of production and we are grateful for our digital team, Phoebe Bradford and Joe Matoski. Subscribe to Strict Scrutiny on YouTube to catch full episodes and find us at youtube.com slash at Strict Scrutiny podcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

Bonus of YouTube is you get to see my Halloween costume, which I realized I never actually really. I spent the last hour like, when is she going to show us her costume? I'm like, when is she going to take it off? I'm just like, I forgot. Take it off. All right. Okay.

So do you want to guess? I mean, it's obviously Taylor sort of related, but what exactly? Obviously. Okay. Are you wearing the black leotard with the white cat around your neck? No, no. That was last year. That was last year. Oh, was that last year? Okay, sorry.

Yeah, but good guess. Is it we are never ever getting back together? No, so I wore that t-shirt basically under the like all too well red duster. Lots of them. Just like a reputation. Just like a reputation of. Is it reputation? Next album to drop and is that the next to drop? It's the reputation bodysuit that she wears at the concert.

With one leg? Can we get a full body, please? I am not standing for Priya. This looks like a figure skating costume. Where did you get this? Damn, girl. That looks amazing.