Strict Scrutiny - Fetishistically Textualist

Episode Date: June 4, 2021

Leah, Melissa, and Kate recap the last week of opinions (Van Buren v. United States, Garland v. Dai, and Cooley v. United States). They also discuss some developments on the shadow docket, whether Neil Gorsuch is getting some cold feet about the whole textualism thing, and the newest teacher in town -- Justice Breyer, who clearly needs some Zoom advice. Follow us on Instagram, Twitter, Threads, and Bluesky

I do have some things to say about his Zoom setup, which I have. Josh, you don't go in there. Daddy's doing a deposition. Josh, you come back. I'm sorry. That has to be in the teaser to the show. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. With the court no longer having regular arguments and instead racing frenetically to the end of the term with opinion releases, which usually happen on Mondays and

Thursdays, we are back to last summer's slightly less regular episode release schedule. So we will still have episodes on a weekly basis from now until the end of the term, but these episodes might come at irregular bursts. So Tuesdays, Wednesdays, Thursdays, Fridays, whatever, depending on what opinions we get and when we get them. But don't worry, we are still your hosts. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. So today we're going to start off with some news from the orders lists, including a stay order that speaks to the implications of a decision from last term.

We'll then recap the court's recent opinions, and we'll end with another court culture segment dominated by our fellow Cassandra, Stephen Breyer. Okay, first, the orders list. Leah, you want to start us off? Yes. So we got a stay order in Boss v. Oklahoma that might pretend some shifts in the court's approach to the law governing Native American affairs, and specifically about the potential fallout from McGirt v. Oklahoma. So the federal government and tribes do. At the time McGirt was argued, the state represented by Lisa Platt and then later by the Oklahoma SG, warned of the practical consequences that might follow from that ruling. The state expressed concern that were the court to hold the reservation

remained intact, that would call into question a bunch of state criminal convictions. So that background sets the stage for the stay order in Boss. On May 26, the court stayed a decision of the Oklahoma Court of Criminal Appeals that found the state did not have jurisdiction over a case in light of McGirt. There were only three noted dissents, Justices Breyer, Kagan, and Sotomayor. To understand why this is significant, we'll need to explain a little bit more about Boss, which involves a murder conviction. The defendant was convicted of murdering three people, a mother and two children. And the defendant claims the victims are Indians, and the state court granted his petition on that basis. Oklahoma made

two arguments about why the Oklahoma Court of Criminal Appeals decision was wrong. The first is about whether state courts, and by implication, federal courts, may apply a procedural bar to conclude that a McGirt claim wasn't properly raised. The argument is important. It affects whether courts will essentially say, well, water over the dam when states affected illegal prosecutions. Even though Mr. Boss hadn't raised this argument until state post-conviction proceedings, the Oklahoma Court of Criminal Appeals said subject matter jurisdiction cannot be waived or forfeited. And because the victim's status as Indians went to the court's jurisdiction, the court concluded the defendant could raise the argument at any time. The second argument Oklahoma raised,

and I think the potentially more troubling one, denies the existence of exclusive federal jurisdiction over Mr. Boss's cases and ones like it. The state insists that the state actually has concurrent jurisdiction with the federal government in cases where the victim, but not the defendant, is a tribal member or Indian. This argument is about the proper interpretation of the General Crimes Act, which says the general laws of the United States shall extend to the Indian country. The Major Crimes Act, by contrast, the act at issue in McGirt, provides for exclusive jurisdiction of the United States over cases where a native commits one of several enumerated offenses. And Oklahoma says, look, Major Crimes Act says exclusive, General Crimes Act does not.

The problem is that in a bunch of the court's prior cases, it has said that Major Crimes Act says exclusive, General Crimes Act does not. The problem is that in a bunch of the court's prior cases, it has said that General Crimes Act jurisdiction is exclusive, like Ramsey or Williams, for those of you who are interested and might want to look it up. But Oklahoma is like, well, those weren't holdings, they were just statements. But, you know, McGirt itself said that General Crimes Act jurisdiction was exclusive. It noted that the General Crimes Act provides that federal law applies to a broad range of crimes by or against Indians, and that states are otherwise free, that is, except in those cases, to apply their criminal laws. The brief for the Chickasaw Nation highlighted some of these cases, and there

really are many, a bunch involving state admissions acts. This argument could be hugely consequential to the scope of state's jurisdiction over crimes involving natives. We noted the Chickasaw Nation filed an amicus brief arguing the state's interpretation threatened their sovereignty and jurisdiction, perhaps because the interpretation would usher in a major shift.

The United States also filed an amicus brief in favor of the defendant and against the state here. So Leah, I was gonna ask, the court with three dissents issues this stay order, but like what is the likely next move here, right? So is the Supreme Court going to take up this post-McGirt case already, right? That seems really soon. But on the other hand, the stakes are high, and maybe this is a sort of thing that's too complex for a short order to resolve, right? The sort of interaction of the General Crimes Act and the Major Crimes Act and the sort of defendant-victim distinction? Like, what is the likely next step? You know,

you would think this would be too complicated or significant of a decision to resolve on the stay order or shadow docket. That being said, the court effectively overruled Employment Division v. Smith and dramatically modified the scope of free exercise law on the shadow docket via stay orders. So it's not out of the question here. I do think, however, it's more likely that there's a cert grant here just because I don't think that the interpretation of the General Crimes Act, for example, is something that Justice Alito has been training for for decades, whereas, you know, free exercise claustrophobics may have been. Do you think this is a case, Leah, that Justice Gorsuch may have some buyer's remorse about the sweep of the McGirt opinion and with a new cert grant, if that happens, they could go back and maybe sort of cabin the reach of McGirt?

You know, it's so interesting because, of course, that's a possibility, but that would be so antithetical to everything Neil Gorsuch suggests he is. Because of course, these arguments were before the court in McGirt. And he was like, I don't care about practical consequences. This is the law. I'm a textualist, you know, and so consequences be damned. But he might be burning his textualist burn book in favor of something else. Right. I mean, so hard to know. I'm asking because like, it seems to me this is a lot like the situation with Ramos and Edwards versus Vinoy, where you did see the court limit the reach and sweep of Ramos, even though there were very compelling reasons to dial back Louisiana's non-unanimous jury verdict as the court acknowledged in Ramos. But in Edwards v. Fennoy, we saw the court sort of like, you know, the practical consequences of this are just enormous. And we're going to like hold the line here in some way. And I just wonder if this is sort of the same situation only in the context of Indian country. And that was another Neil Gorsuch special, you know, soaring rhetoric about rights or Indian law or textualism. And then when push comes to shove, you know,

maybe got a little squishy. But, you know, it could be the same thing is happening here. Yeah, we will see if it's the same two-step. That would be so interesting. Okay, so we'll obviously keep a close eye on that. There was one more item we wanted to note from the shadow docket. On Tuesday night in the case Denver Bible Church versus Polis, Justice Gorsuch, obviously figuring prominently so far in this episode, rejected a request from two Colorado churches for an injunction to block any remaining COVID-related restrictions that they alleged would interfere with their exercise of religion. So here they were actually challenging the state's general

disaster emergency law, which they claimed burdens their religious exercise. And they also specifically argued that that law and its application to them could not survive the court's decision in Tandon v. Newsom, the big kind of COVID religious exercise shadow docket case in which the court finally issued an opinion that maybe did quietly overrule Smith. I guess we will see when the court issues its decision in Fulton. So this was yet another of these church COVID challenges, you know, styled slightly differently in that, again, it was a general emergency statute as opposed to some COVID specific set of restrictions. It differed in a few other ways. One in that it, for good measure, the churches here threw in an explicit request that the court overrule Jacobson v. Massachusetts, the 1905 case in which the Supreme Court upheld a compulsory vaccination law as a valid exercise of state police power.

Early in the pandemic, when the court was split 5-4 rather than 6-3, Jacobson actually got a lot of plays. The court's liberal wing, in tandem with the chief justice, voted to uphold state lockdown restrictions as valid exercises of the police power. Gorsuch has actually been quite derisive of Jacobson in some of his own writings. But so in a fascinating turn, these Denver churches not only asked the court to overrule Jacobson, but also asked the court to overrule the notorious Buck versus Bell decision in which the court actually cited Jacobson in its decision upholding compulsory sterilization. That's the case in which Justice Oliver Wendell Holmes infamously explained that three generations of imbeciles were enough. So here I have to shout out, Melissa, your great interview with Adam Cohen about his book about the case and also suggest

that this stay application was like a perfect illustration that what Melissa has described as racing Roe is a move that is now underway with respect to Jacobson, right, to sort of use the extremely problematic racial past of a particular decision, either its antecedents or its application. Here it's Jacobson's application in Buck as opposed to the antecedents, at least on the telling of Thomas of Roe, but either way to use race as a cudgel to overturn these kinds of precedents. So it is so interesting to see this move at work in the stay application, which was unsuccessful here. But, you know, I think that clearly there's a particular wing that has Jacobs in its crosshairs. And it's very interesting that it's going to use, I think, Buck in service of that project.

Eugenics is having a renaissance at the court, which is interesting. But I also, again, sort of this idea that the court is not attentive to things that happen outside of 1 First Street, I think you really have to sort of do away with that. I mean, we've seen over the course of the last year all of this interest in racial justice, Black Lives Matter. And one way, one very cynical way to kind of link all of this together is this is, for some members of the court, their Black Lives Matter moment. But it's not from 2020 and the death of George Floyd.

It's from the 1920s and the rise of the eugenics movement. And, you know, they're basically crafting new origin stories rooted in racial injustice for a number of different practices. We saw this in Ramos. I think you could also view Espinosa in the same way. There, the idea is anti-Catholic fervor. And there's no sort of recognition of the intervening cleansing moment where some of these policies are reenacted without any kind of racial bias at all, which was certainly the case in Ramos and which was the case in Espinosa. The so-called Blaine Amendment was

reenacted in the 1970s without any of the anti-Catholic fervor that had accompanied the original. But that falls out, and all you have is this time one where there's all of this racial discrimination, discrimination against Catholics that has to be corrected by this now modern court. And it's just such a cynical and selective, like, kind of outrage about either the racial origins or the disparate racial impact.

Like we're all sort of waiting to see what the court does say with the Voting Rights Act case out of Arizona. And I feel pretty confident that a majority of this court is not going to be too troubled by the disparity in impact on the basis of race of particular kinds of voting limitations. Or even go back two terms to the census case. No one seemed to care that the census case would have a disproportionate impact on those of Latina descent participating in the census. So it's a terrific point, Kate. I mean, it is itinerant and selective, the commitment. So, but it is interesting that this effort, although I think we are correctly identifying it as spanning a lot of different domains, is entirely unsuccessful in this particular stay application. And Gorsuch just denies it without even referring it to the full court.

So it may be that these churches were asking for too much too quickly and that they sort of overplayed their hand and thus were unsuccessful at the court. But the arguments that they are making are ones that we will definitely see again. Okay, so let's transition to the opinions we got in the last couple of opinion releases. Melissa, you want to start us off? So first up is an opinion in Garland v. Dye. So as a general matter in asylum cases, responsibility for making credibility determinations

rests with the immigration judge because as the trier of fact, the IJ is the legal actor who directly hears the asylum seeker's testimony and is in the best position to assess that person's credibility. In some cases, however, IJs do not make explicit credibility findings when

denying asylum. So the question in such circumstances is what does a reviewing court do? In such circumstances, the Ninth Circuit has adopted a rule that reviewing courts when adjudicating a petition for review from a Board of Immigration Appeals decision must presume that the asylum seeker's testimony is credible. And in Garland v. Dye, the court considered the permissibility of that adopted rule and unanimously reversed it, holding that federal courts cannot adopt a presumption that an applicant's testimony is credible where the IJ has not made an adverse credibility finding. They also rejected an alternative, narrower framing

for the Ninth Circuit's decision that we will touch on briefly. So this is a unanimous opinion. It is written by Justice Gorsuch. And interestingly, it is devoid of the usual peons to textualism or the pull quotes that we typically expect from his, I burn for you textualism book,

which I guess now is known as his burn book for purposivism. So your mileage may vary on that. But it seems like he's no longer worried about running short of these items. Not really as fixed on this as he used to be. Maybe he's worried about future star turns on this podcast with Melody's like amazing musical underlay. And so that's why he's holding back. He's holding back until we get Regé-Jean Page to read these quotes. And that's when he will release them all.

So we got to cast it first and then we're going to get more material. Exactly. Call us Regé-Jean. Call Melissa, I think you mean to say. I don't know if I'm the only one. I'm happy to be called. So this is an opinion that is about what the Immigration and Nationality Act means and the structure it creates for federal court review of immigration judge or BIA decisions. But interestingly, like the decision in Guam

versus United States, which we talked about on our last recap episode, is not exactly fetishistically textualist, right? It is not. I want to put, let's put that on a shirt. Fetishistically textualist. That's a great new collection. And it goes to pay Reggie Jean Page all proceeds. We're going to have to sell all our shirts, I'm afraid. Or not. But it really isn't. So it's not that fetishistic. It's not fixated on dictionaries or canons of construction.

And what it does instead is to look kind of broadly at the overall structure of the INA, which, as the court notes, has carefully circumscribed judicial review of BIA decisions, particularly when it comes to questions of fact. Doesn't that feel a little like purpose? I was just about to say that feels like identifying the purpose to a statutory regime and or overall structure. But a republic, if you can keep it. Just giving it all away. So, okay, so there is this like structuralist, maybe purposivist kind of analysis. The court then does go on to interpret the INA provision that says the applicant shall have a rebuttable presumption of credibility on appeal in the absence of an adverse credibility finding. But the court basically looks to Ninth Circuit decisions, federal statutes, and federal regulations, right? All of these other sources of law, you know, and sources beyond the narrow text that the court is interpreting.

And it sort of bolsters all of that with references to historical understandings of federal court review of administrative agencies, you know, cases, statutes, and also general principles of administrative law to basically say this on appeal, you know, this rebuttable presumption of credibility on appeal describes a presumption that applies at the BIA, but not when it comes to federal court review of these credibility determinations. And all of that reasoning, you know, is actually pretty unmoored from the text of the statute, but in a great way, right? Like, that's awesome. We are not criticizing. Right. Like, this isn't a diss

on the method that, you know, the court is using here. It's like an eminently reasonable way of deciding cases involving the proper interpretation of a statute. It's just not necessarily how Neil Gorsuch in particular has described that inquiry in other cases, even just this past term. You know, my favorite line being, of course, but words are how the law constrains power from Nia Chavez versus Garland. That's just something different entirely. So the Supreme Court also rejected, as Melissa noted, an alternative way of affirming the Ninth Circuit.

The asylum seeker had argued that he was entitled to a presumption of credibility during the BIA appeal. And given that, he claimed no reasonable adjudicator who was obliged to presume his testimony credible could have found against him. The Supreme Court said the BIA wasn't required to use magic words to conclude that the presumption of credibility was rebutted and that even so, with the presumption of credibility, that didn't mean that the asylum seeker met their burden of proof or persuaded the BIA that they were entitled to relief. One note, the opinion initially said, and I believe as we are recording, still says

Bureau of Immigration Appeals as the name for the BIA, even though it is, as Melissa correctly stated earlier, the Board of Immigration Appeals. So neener, neener. Arata will be forthcoming. Yes. So we also got a second case on Monday, and that was United States versus Cooley, which turned out to be a major case on tribal authority. The specific question in Cooley was whether a police officer of a tribe, an official tribal police officer, can stop and search someone who isn't a member of a tribe. But the officer has reason to believe is committing a crime on tribal lands, technically on a public right-of-way. The Ninth Circuit had said the tribal officer couldn't stop or search a non-tribal member unless the officer first asked whether they were a member of the tribe, and if not, criminal activity had to be apparent. The Supreme Court rejected the Ninth Circuit's rule and said tribal police officers can stop and search non-tribal members where there's probable

cause to believe they've committed a crime on a reservation, basically on the way to conveying them to a state or federal officer. Right. So Cooley, I think, is a quite significant decision because the court's earlier jurisprudence has made clear that tribal governments no longer possess certain powers, particularly those that implicate the rights of non-Indians. And in Cooley, the court was asked to confront where tribal policing powers fit within those various frameworks that it's previously developed for determining the scope and extent of tribal sovereignty. The issue in cases that people might be most familiar with are those saying that tribes cannot criminally prosecute non-tribal

members, even persons who are members of a different tribe, and even for crimes committed against tribal members. And the major case on tribal authority over non-tribal members is Montana versus United States, which features prominently in the court's opinion here in Cooley. And in that case, the court said that, quote, the inherent sovereign powers of an Indian tribe do not extend to the activities of non-members of the tribe, end quote. But Montana recognized two exceptions to the general rule that tribes do not have authority over non-tribal members. So the first exception is where tribes regulate activities of non-members who enter into consensual relationships with tribes or its members through commercial dealing. And in those circumstances, tribes can tax or license the non-tribal member.

The second exemption is the one that's relevant in Cooley, where non-tribal conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Now, historically, the court has treated these exceptions incredibly narrowly. And until this opinion, the court had never recognized tribal authority to regulate non-tribal members under the second Montana exception for non-tribal conduct that threatens or has some direct effect on the political integrity, economic security, or health or welfare of the tribe. So maybe this is all going to be a Ramos-Edwards v. Vannoy episode, but this particular part of the opinion made me think of the court in Edwards v. Vannoy rejecting the existence of the exception for watershed rules of criminal procedure that apply retroactively on the ground that since the decision was announced in Teague in 1989 until today, the court had never recognized watershed rules of criminal procedure. And the

court said the fact that they had never recognized such a case meant there was no such exception. Well, until today, the court had never recognized a case falling under the second Montana exception until it did. And yet the court didn't come out in this case and say that means the exception didn't exist. So, you know, still salty about the insane logic of Edwards versus Fennoy. And, you know, again, just to go back to how stingy the court has been with the second Montana exception, just like it has been Stingy with the second Teague exception that used to exist. Under that second Montana exception, the court didn't allow tribes to prosecute non-tribal members for criminal activity, even when a tribal member was the victim of that criminal activity on the ground that the crime affected the health or

welfare or political integrity of the tribe. In order to get a sense about exactly how Stingy the court had been with this exception and how narrowly the justices believed it was, here's a clip from an oral argument in a previous case, Dollar General versus Mississippi Band of Choctaw Indians, in which the chief justice conveyed his sense about how narrow and possibly non-existent that second Montana exception might be. Thank you, Mr. Chief Justice, and may it please the court. The facts of this tragic case place it squarely in the heartland of the sovereign tribal jurisdiction that this Court has recognized for decades. Dollar General set up shop on tribally owned land

with a lease and license from the tribe and agreed to participate in a tribal internship program. Then the tribe placed a Choctaw child at the store and paid his wages. In the course of that consented to employment of that child in that store on that tribal land, Dollar General's manager allegedly assaulted him. You say this is in the heartland. We have never before recognized Indian court tort jurisdiction over a nonmember, have we? Well, I think that you haven't applied the rule. But notwithstanding the chief justice's skepticism in that oral argument, here in Cooley, a unanimous Supreme Court held that tribal officers can stop and search non-tribal members where they have probable

cause to believe those non-tribal members are committing criminal activity on a reservation. It is the first opinion to uphold tribal jurisdiction over a non-Indian under Montana's second exception. And it just kind of gets there using logic, right? So the court says the second exception we have just quoted fits the present case almost like a glove. To deny a tribal police officer authority to search and detain for a reasonable time, any person he or she believes may commit or has committed a crime would make it difficult for tribes to protect themselves against ongoing threats posed by drunk drivers, transporters of contraband, or other things. So it's pretty clear, right, that is conduct that threatens the health or welfare of the tribe,

which is what the second exception contemplates. In addition to this kind of just logic, the court also relies on statements in its prior cases that seem to, again, allude to the possibility that tribal officers might be able to exercise their power to detain the offender and transport him to the proper authorities. Brief side note again, you know, I'm a big fan of this kind of reasoning because I happen to think that the language that the court uses state order, how the court has said in case after case after case after case that jurisdiction under the General Crimes Act is exclusive in the federal government. And Oklahoma is basically trying to say, well, those were statements. Those weren't holdings.

Yeah, you've said it all the time for hundreds of years, but that doesn't matter. But it really annoys me when the court makes that move and suggests that nothing it has said actually matters. Like when it will say we don't read our opinions like statutes or yeah, we said those things, but they weren't really necessary to the opinion or part of the holding. You know, again, the court did this in Edwards versus Vinoy when it was like, yeah, we said this exception existed in a bunch of times, but like, who cares? Not my jam. So in addition to the reasons you noted, Kate, for the court reaching the conclusion that this fell under the second acceptance of Montana,

the court also noted that prior cases that limited tribes prosecutorial authority rested on concerns about applying tribal law to non-tribal members. And those concerns were absent here. The court also said it had misgivings about the administrability of the Ninth Circuit's standard and specifically the introduction of a new standard into search and seizure law, whether a crime was apparent. Cooley, I guess we haven't said yet, was an opinion by Justice Breyer. It was unanimous. And this passage made me think of his professed concern in at least two arguments just this term with the court inventing new standards or changing old ones. This came up in the securities law class action case in which he said he didn't want the court to say too much. I'm not sure what you think. And maybe on rebuttal the others. I mean, this seems like an area that the more that I read about it, the less that we

write, the better. It also came up in Mahanoy versus BL, the free speech case involving the cheerleader and Snapchat, in which Justice Breyer expressed that he was terrified about writing some possibly new legal standard. How do I get a standard out of that? I'm frightened to death of writing a standard. And Tinker, after all, doesn't really write a standard. It just says you can't regulate school unless it substantially disrupts or hurts somebody else. So this is a win, but a win that reaffirms the Montana framework, which of course has been extremely difficult for tribes to satisfy and be able to exercise tribal authority under. Okay.

And the last opinion we got this week is a case about the Computer Fraud and Abuse Act and specifically about whether an individual violates the CFAA's prohibition on exceeding authorized access when an individual violates company restrictionsAA's prohibition on exceeding authorized access when an individual violates company restrictions on the use of a computer. So here, recall, the defendant was an officer who ran a license plate search in a law enforcement database in exchange for money. So that obviously violated department policy, which allowed officers to use the database only for law enforcement purposes.

So Justice Barrett had the opinion in this case. She wrote for a weird majority that we will talk about a little bit later. And she held that this conduct did not violate the CFAA. And specifically, she held that the exceed authorized access part of the CFAA is violated only when an individual obtains information from particular areas on the computer, so like files, folders, or databases, to which their computer access does not extend. So it does not cover people who improperly use or access information that is otherwise available to them, as was the case with this police officer. So Kate, you mentioned this is a weird majority. Justice Barrett wrote the majority for a 6-3 court, but not the typical 6-3 breakdown. The dissenters were the Chief Justice,

Justice Thomas, and Justice Alito. So that would mean that Justice Breyer was the senior justice who would have assigned the majority opinion, and he assigned it to Justice Barrett. Steve, you've now had your chance to assign a majority opinion. You have crossed that off your bucket list. No need to stick around for that reason, at least. Just thoughts. So it is worth noting that the CFAA defines exceeds authorized access to mean to access a computer with authorization and to use such access to obtain information in the computer that the accessor is not entitled so to obtain. And the dispute in this particular case is whether Mr. Van Buren was entitled so to obtain the record in question. And the dispute is largely over what so means or refers to.

So if you were around during the Clinton days, this is a little bit like what is the meaning of is, is. It's kind of like that. So Mr. Van Buren had argued that entitled so to obtain meant getting information via a computer one is not authorized to use. By contrast, the government argued that entitled so to obtain meant getting information via a computer one is not authorized to use. By contrast, the government argued that entitled so to obtain meant getting information in a manner or under circumstances that were unauthorized. So, so, so. So there were a lot of dictionary definitions flying in this opinion. The opinion first cites both Random House and

Black's Law Dictionary for their definitions of entitled, which, okay, I actually did not really object to the use of dictionaries there, but then turns to the dictionary for the term so, here Black's and the Oxford English Dictionary, which did seem like a bit much, right? Like that sort of connective phrase, I'm not sure the dictionary is going to do that much to illuminate, but that's just me. You know, it wasn't just that kind of opening, right? Like, there were so many dictionaries deployed over the course of the majority and to an extent, the dissenting opinion. And to me, it always feels like when you have literally four different dictionaries in the opening couple of paragraphs, that sort of feels to me like pretty strong evidence that the author is dictionary shopping for the most useful definition, right? Which I think is just

a good illustration of how foolish the whole enterprise of reliance on dictionaries is. And I haven't had a chance yet to count and compare the number of dictionary citations in this opinion. But I think that Taniguchi, which is an Alito opinion, which I remember cites 14 different dictionaries, I think is still the record holder, but this one definitely comes pretty close. So in a dictionary, that's not the sole source the opinion relies on. The opinion also looks to how other statutes use the term so. The dissent then relies more on the term entitled than on so, right? Saying entitled means like, you know, having proper grounds. And the majority responds that it's a mistake to read entitled divorced from so to obtain. And I think that, you know, that dispute that you just highlighted, Kate, really reflects

a phenomenon that Victoria Norse and Bill Eskridge have written about in a forthcoming article. You know, they call it gerrymandering, where basically a lot of textualism depends on what phrase, word, or collection of words you say you're interpreting. So for the majority, it was, you know, entitled to so obtain, you know, for the dissent, it was just entitled, and that, you know, led them in different directions. And you can't, again, look up a dictionary to tell you which set of words you should be, you know, trying to interpret. Wait, so Leah, is there a point in this article that judging is not like

calling balls and strikes and actually requires some judgment on the part of the person judging? That's at least their point with respect to textualism and professions to the contrary in that methodology. So I mean, but I thought the plain language of the statute usually led to the proper results. You know, Neil Gorsuch has been beating that drum, Melissa, but even he might be getting some cold feet. So we shall see. No, I don't actually think he's going to get cold feet. I think he's going to keep screaming that at the top of his lungs for perpetuity.

So, you know, this Van Buren is a textualist opinion and a formalist textualist opinion in some places, less so in others. But just to beat a drum that we have returned to a few times this term, that wasn't necessarily the vibe one got at argument. Indeed, you know, looking at the transcript and listening to the audio, the only justice really focusing in on this, what does so mean and what does it refer to, was Justice Kagan. The other justices were much more concerned about consequences, statements in the court's prior cases. Would this hypothetical be covered under a prosecution, legislative history? That was Justice Breyer, obviously, etc. Whereas Justice

Kagan wanted to know the following. Mr. Fisher, could you tell me again what you think so means? So means in the manner so described. That's the Black's Law definition. And so translated to this statute, what it means is that you've accessed and obtained the information via computer as opposed to some other means. So could you just parse that for me a little bit? In a manner so described, asks for some kind of reference back.

So what are we referring back to on your theory? You're referring back to access a computer with authorization. So Justice Kagan was also the one to talk to the government about surplusage and whether they would have an argument if so was deleted. Justice Barrett did bring up one of the more structural arguments that made its way into the opinion how this interpretation tracked the other clause without authorization in the CFAA. Given the court's rule that the exceed authorized access part of the statute is violated only when an individual obtains information from particular areas to which their computer access doesn't extend, I think the next big question,

or perhaps a next big question, will be what does it mean to say that an individual doesn't extend. I think the next big question or perhaps a next big question will be what does it mean to say that an individual doesn't have access to a particular area in a computer? Could that be by virtue of a company policy or like some kind of physical or security breach like password login or, you know, whatever firewall or whatever you call it? A couple of footnotes seem to say slightly different things about this. So I predict another case on this issue some point soon. I had like two other thoughts about the case. One is that it was quite snippy, I thought, at points between the majority and the Thomas-authored dissent. I also thought it was curious how often Barrett in the majority invoked the dissent. I mean, she seemed to want to respond

point by point, which I don't know, to me always sort of seems to signal like a little bit of insecurity or uncertainty about the strength of your position. Like I have to say, Leah, I always really appreciated the way your former boss, Justice Kennedy, like no matter how biting the dissent was, if he was in the majority, we just ignore it, you know? And like, I think there's actually, it's kind of like a boss move to just say like, say what you will, like I let my opinion speak for itself. It's a jurisprudential Mariah Carey. I don't know her. I don't even know who wrote that dissent. So Kennedy would basically never do it. Scalia could never help himself.

He could never resent. Same thing. He and the majority would respond to everything. And you end up just elevating the dissent that way because then the dissent gets their time and half of your time. So I just feel like that is definitely something she has picked up from her former boss, at least initially. Obviously, that could change. There are also a number of citations to Justice Scalia and his work with Brian Garner here, too. So, I mean, he lived in many different ways in this opinion. He really did. And Scalia and Garner had a number of appearances, both in the majority and in the dissent. Yes. Not just you. As we can just reissue our reminder, which we've issued before, which is there are lots

of other people writing great work on statutory interpretation, justices, law clerks, you should read it. One big takeaway from this case though, Van Buren, you do not violate the CFAA if you choose to embellish your online dating profile. So any of you were worried. Barrett explicitly says that, which is great. You're ready for that hot girl summer in your Tinder profile post-pandemic. Hot girl summer. I'm just tepid middle-aged woman summer. But it can be a hot girl summer on your Tinder profile. That's the point, right? All right. Let's do some court culture. So y'all, I hope you sharpened your pencils and got your trapper keeper ready because there is a new teacher in town, people. Justice Breyer zoomed in to teach a National Constitution Center Zoom class on the Constitution and

democracy in his own general musing. So school is in session. First, if it wasn't apparent for those of you who watched this class session, for those of you who didn't get to see it, Justice Breyer unsurprisingly enjoyed himself a lot during this session. And to be clear, I think he would probably have fun in most circumstances. He seems like he's a pretty affable guy, but he seemed especially tickled to be chopping it up with Jeffrey Rosen and the folks at the National Constitution Center and the middle schoolers who were the target audience for this. He really enjoyed teaching this class. Like the photos are of him smiling from ear to ear.

He really likes teaching. And, you know, perhaps there is a return to academia in his future if some time frees up. That could be really interesting. I'm just going to put out there that the University of Virginia, Wahoo Wah, has been on a hiring tear. And this might be a target of opportunity. And Risa Golubov, if you're listening, I think your old boss might want to get some J-term teaching in. So

check that out. It also brought to mind, Leah, and you mentioned this earlier, this reminded you a lot of a keynote address that he gave a few years ago, I guess it was a decade ago, at GW. So do you want to tell us a little bit about this? Yeah. So GW had a symposium on the 40th anniversary of Justice Breyer's article, The Uneasy Case for Copyright. And Justice Breyer gave this keynote that was just like Justice Breyer's mind on a page

in which he said, you know, I reread my article and I was thinking, why did I write this? And the reason is obvious. I wanted tenure and I was pretty nervous about it. And it's just like, read the keynote. It's super funny. He talks about the drafting process, the revising process. He also talks about the tenure process at the time, which required only one article. Not that anyone's bitter. He was apparently the first person to whom even the one article requirement had been applied previously. It was just like, ah, Irwin Griswold thought you were brilliant, like you got tenure. Like, that was the process. And Breyer was like, I don't know, either like the times had changed

or Griswold wasn't sure about him, but he was required to produce that one article before getting tenure. The uneasy case for copyright, the easy case for Justice Breyer's tenure. All right. So what are the other takeaways from the Breyer talk? He mentioned that he does some quote unquote fake bike riding on quote, one of those machines. So is he signaling to us that he has a Peloton? I feel like we should search for Ishka Bibble and other brierisms on leaderboard

names because I just have a feeling. He had more to say, not about his fitness routine, but his interest in what he views as compromise and its importance for effective government. So he said that he was basically optimistic. He didn't know if that was justified. It's not. But his approach, I think, to bipartisan cooperation is that if you need Republican support, he said, you should talk to them. My friend, what do you think? Get them talking, he said, and they'll eventually say something that you agree with. Thoughts?

I mean, I think, wasn't he talking there about his time as a staffer in Congress? Yes. But he was also extrapolating to the current moment where, and he was sort of talking about how- He basically thinks he feels the same way, like about the possibilities of like, you know, cross ideological compromise convergence. First of all, I just, I listened to this and I was, you know, like, he's not just a Cassandra, he's sort of a cockeyed optimist. And it is both lovely. And, you know, maybe a little alarming, because I don't know that any of the people with whom he wants to have these conversations are necessarily viewing them as opportunities for cross-fertilization, for collaboration, or even for compromise. So

it was both lovely to hear, but also, you know, not really sure it's super realistic in this particular moment, but maybe it should be. No. And, you know, part of the not super realistic, he was literally teaching this class and giving the speech at the same time that Republican senators killed the bill to create a commission to investigate the January 6th insurrection at the Capitol. And just talk to them. They'll say exactly. And say to them, my friend, what do you think? He also had some stuff to say about the rule of law. And I think this was what you would expect. He said that you should follow the rule of law even when it's wrong. And I think if you think back to some of his opinions over the last term, I'm thinking

Nick Hyatt, he had very strong, sorry, decisive, is not for suckers energy. And that, I think, really came out in this point. He seemed very concerned about the prospect of the politicization of the court. And he emphasized at length that on balance, the court is not about politics, but it's not the case that when someone asks if the court is political, that the answer is no, not in any sense, whatever. So admitting that some degree of politics informs what they do, but resisting this idea that the court itself is politicized. So, you know, that was sort of the substance of it. It got a little bit of press from folks sort of

reading the tea leaves, trying to see if he was giving any clues about his future plans. So I will say, though, that his Zoom setup is not good. It is, I think, one, two out of 10 on Room Raider. So Justice Breyer. As a ten out of ten. Melissa obviously knows where she speaks. I mean, I wasn't going to say, but I can. Justice Breyer, call me. I have notes for you.

I will help you. So first of all, the first note is, Justice Breyer, you need to lower your camera angle a lot. So right now, the camera is literally going up your nose. And it's like the camera is doing going up your nose and it's like the camera is doing a COVID swab test on you in real time. So that is not a look for you. Do not do that. It's not good. The angle also cuts Justice Breyer off at his neck and torso. So he's, it's just giving him like very strong Anne Boleyn energy that I think he should resist. So that is a problem. And I also think he probably has a really cool office setup. So you can see behind him these books and they

look incredibly old. And there's also, I think, on top of the shelves, what I believe, I mean, I couldn't see, it's very faint, but it looks like the frontispiece to Thomas Hobbes' The Leviathan, so sort of the anthropomorphic state, which is also very cool, but you can't really see it. So all you get is just this disembodied head with all of these old books behind it and then this Leviathan etching on top. And, you know, it's a vibe, but maybe it's exactly the vibe Justice Breyer is going for because it just screams excessively cerebral. Lots of books,

lots of Leviathan. But I'm just going to say I think he could really benefit from a succulent or a pineapple here. So on a less happy note, but with an apparently happy ending, we learned this week that Stanford Law was holding up the degree and investigating during finals a law student for making a satirical poster criticizing Josh Hawley, Ken Paxton, and the Federalist Society for enabling and encouraging the insurrectionist mob at the Capitol. Mark Joseph Stern spoke to the student and FIRE, an organization devoted to free speech, also put out a statement that the student sent an email to a student listserv at the end of January advertising a Federal Society event to be held earlier in January at which two FedSoc

members Josh Hawley and Texas AG Ken Paxton would be keynote speakers. The event was titled the quote originalist case for inciting insurrection and would discuss, quote, doing a coup, which was, quote, a classical system of installing a government and, you know, went on to kind of describe it. You know, to be clear, the poster was clearly satire, right? Just like on several levels. And I think was quite funny. Like, it was pretty good. It was so well done. Yeah. But anyways, two months later, an officer of Stanford Law's Federal Society filed a complaint against the student claiming he had defamed Senator Hawley, Attorney General Paxton, and the student group because he impersonated the group on May 22nd that he actually did want to proceed with a complaint Stanford initiated an investigation that put on hold his diploma two weeks before law school graduation. Last Wednesday, or however, sorry, late Wednesday, however, Stanford's communications department announced that the hold had been lifted, that the law school had been following its ordinary

protocols for complaints filed. It wasn't really an apology, but it was absolutely a confirmation of the absurdity of the school's action and hold and of indication of the student, Nicholas Wallace, who hopefully will get some well-deserved fame out of this event. Nicholas or Nick, if you are listening or if your friends are listening, get in touch. We'll happily send you a mug. I have just the mug. Oh, yes, you do. Yes, I do. And I'm not going to say it on the air. Stanford Law Federalist Society is going to file a complaint against me. It's not generally available merch, but we have like, there's like

a special limited. Exactly. There's a special mug. Yeah. But can I just say, like, the complaint is so insane because it rests on the idea that someone would read it and reasonably think that the Federalist Society actually would promote violence, right? Like, that's the only way there would be confusion is if you would read the substance of it and think, yes, this is actually something the Federalist Society would do. So it's just insane for all sorts of reasons. But again, ended happily, thankfully. All right. I think that's all we have time for today. So we will see you next week at probably an irregular time. But whenever it is, we will keep you up to speed on what is coming out of the court. Till then, thanks to Melody Rowell, our producer. Thanks to Eddie Cooper for our music. If you want to support our show, you can go to glow.fm forward slash strict scrutiny.

And don't forget to rate and review us on iTunes or wherever you listen to your podcasts. We'll see you next time.