Strict Scrutiny - Florida Becomes a Battleground for Reproductive Rights

Episode Date: April 8, 2024

Kate and Leah break down the latest court news with Errin Haines, Editor-at-Large for The 19th and host of The Amendment, including developments in abortion access in Florida and the discourse around whether Justice Sotomayor should retire. Then, Jill Habig of the Public Rights Project and Tyler Yarbro from the Tennessee Freedom Circle join Melissa, Kate, and Leah to talk about the latest conservative effort to control the courts: judicial gerrymandering.Listen to Melissa's interview with Errin on The Amendment, talking about the Trump indictmentsSubmit a question for our upcoming mailbag episode here! Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Littman. And I'm Kate Shaw. And today we've got an exciting episode that will feature a deep dive into a new frontier in the conservative effort to take over state courts, or at least

to control how state courts can use their powers, and it is called judicial gerrymandering. But before that, we're going to get you up to speed on the latest news related to the courts. We are delighted to be joined by Erin Haines, an award-winning political journalist and founding mother and editor-at-large for The 19th, a nonprofit, nonpartisan newsroom that covers the intersection of women, politics, and policy. Erin is the host of the 19th great new podcast, The Amendment, where she interviewed Melissa, among other great guests. So welcome to the show, Erin. It's good to be with you all. So with Erin's help, we're going to be covering a lot of news, which will include first, the Florida Supreme Court decisions on abortion. Second,

recent retirement talk concerning Justice Sotomayor. And then briefly, we're also going to talk about developments in the Trump cases cases and also an important development in the Good Neighbor cases that SCOTUS heard argued during the February sitting. First up, the Florida Supreme Court, where last week we got two significant opinions from the Florida court on the issue of abortion. So in one opinion, the Florida Supreme Court reversed all of the Florida Supreme Court's previous cases, holding that the state constitution's right to privacy clause protects the right to decide to have an abortion, i.e. new YOLO court rising. After reversing those cases, the Florida Supreme Court up of the way in which Florida abortion laws have been written, the fact that the court upheld the 15-week ban means that 30 days later, the state's six-week abortion ban will go into effect, which of course is effectively a full-out ban since many people won't know they're pregnant six weeks from their last period. Florida also has

a waiting period and two-person visit requirement. So you add that onto the six-week ban and there goes abortion access. Yeah, and there goes abortion access not just for the state of Florida, but effectively for the South because Florida had, in the post-Obs era, and in some ways even before, really been a haven for a lot of people in the American South to be able to obtain an abortion. And that is because abortion is severely restricted or prohibited in essentially every nearby state. Let me just say one thing about the opinion first, though, which is that as Leah accurately described the case, it overturned the court's previous cases

on abortion under the state constitution. But weirdly, it claimed it was, quote, receding from rather than overruling those previous cases, which I do think is like this YOLO court is taking cues from the big YOLO court, which is doing enormous and maximalist things and trying to pretend it is not. So it clearly overturned these cases, but weirdly framed it differently. In any event, on the impact of the ruling. So the Washington Post reported that, you know, after this six-week ban goes into effect, the closest clinic where abortion will now be legal after the six-week mark for someone living in Florida's southernmost tip will be a 14-hour drive to North Carolina. But North Carolina bans abortion after 12 weeks.

So other patients more than 12 weeks pregnant will have to drive 17 hours to southern Virginia. In that same article, the Post spoke to Anya Cook, who almost died after being denied an abortion under Florida's 15-week ban, and who urged women who encounter pregnancy complications after the six-week mark to, quote, run, run, because in the second opinion, the Florida Supreme Court, by a razor thin four to three vote, allowed the Reproductive Freedom Ballot Initiative to actually go on to the ballot so that Floridians will have the opportunity to vote to enshrine, once again, protections for reproductive freedom in the state's constitution. And it would enshrine a right to abortion until viability, so around, you know, 22, 23-ish weeks. But an important note, the amendment requires a 60% vote to pass, unlike other recent votes in purple states like Ohio, where a simple majority was all that was required. So, Erin, you know, what do you make of these dual rulings? Yeah, I mean, it is kind of a split decision, right? And this just continues to be the confusion of this unfolding post-Dobbs reality landscape,

a lot of which is largely kind of being decided in the courts. And what is happening at the court level, whether that's at the state or Supreme Court level, is really motivating voters, particularly women, because they are seeing how this is having really real life stakes. We're continuing to see testimony from people about the stakes of these kinds of rulings. So like, I mean, wow, the idea of Florida as an actual battleground, didn't think I would, you know, live to see that. But that has been made possible by the issue of abortion and by what these courts are doing with abortion on the ballot.

I think, you know, we've seen with these ballot initiatives in other states, they've been successful. So, you know, what will that mean? But also, how does the court, especially the state court, continue to play a role in the future of abortion access in Florida and, to your point, Kate, in the South? So I just want to pick up on something you just said, which is the role of the court and the fact that we are perceiving these dual rulings, I think, accurately as a split decision, and how far we have come since Dobbs that we are now viewing it as a victory that a state Supreme Court would deign to allow the voters to choose whether to enshrine protections

for reproductive freedom in the state constitution. And again, the Florida Supreme Court was four to three on that issue. They almost prohibited the voters from exercising their right to decide whether to amend the constitution and enshrine those protections. And I have to say, the dissenting opinions as well as the concurrence by the Chief Justice, whose questions from the argument we had played on a previous episode, were very scary to me, because they suggested those justices are potentially open to recognizing and adopting fetal personhood and thereby potentially declining to give effect or maybe invalidating a potentially successful constitutional

amendment to protect the right to an abortion. So in one dissent by Justice Groshans, I'm not sure if I'm pronouncing that correctly, the justice said they would reject the ballot initiative in part because it could and likely would impact how personhood is defined. In Justice Francis's dissent, they decried the right to an abortion as interfering with, quote, the right of another person, the right to live, and said they, quote, must recognize the unborn's competing right to life. And then the chief justice who said he would allow the ballot initiative to actually go on the ballot was like, well, the court has a very narrow role in the amendment process. But wink, wink, there are serious questions of justice with respect to this ballot initiative and then suggested that there were these inalienable rights protected under some pre-constitutional objective moral reality that might come into play in subsequent cases.

So I don't know, I was very nervous. And this just, I mean, like this just underscores, again, just how fragile and tenuous all of this is, right? And again, why it matters, why elections have consequences, right? I mean, these Florida Supreme Court judges are appointed, but they're appointed by the governor. So who the governor is, much like who the president is, does have a role to play in how these courts are set up and how we get to, you know, really these really close decisions. Yeah, the closeness, and I totally agree, kind of the tenor of, so again, the chief justice whose questions from the oral argument we previously played and was obviously interested in exploring

fetal personhood when he heard the arguments in the case, you know, makes clear how seriously he is thinking about fetal personhood in that separate writing. And I kind of couldn't tell, I'm curious what you both made of this. He seemed to my mind to be doing kind of two separate things. One, to be saying, as Leah, you said, he says the court's role in approving a ballot measure is, pretty limited. But he's also saying like, so we can't keep this question off the ballot. But he's almost like exhorting Floridians to vote against it. Like which can you I mean how is that an appropriate thing for a concurring opinion to do to say like it's there. We can't.

I'd love to stop it but I can't. But you please vote against it. And then he almost to your kind of pre-constitutional moral rights point Leah. He almost seems to be saying if Floridians you for it, and it ends up a part of the Constitution, maybe we the court will find that it is unconstitutional, even though it is going to be in the Constitution. Like, what is that insanity? What is he even saying? I mean, I think he would say that the Declaration of Rights abandoned the subsequent amendment, just like the court has receded its prior cases and

the supreme court has abandoned lemon i mean i don't know like it's just ed it is we are living in some weird 1984 reality as far as like how courts are describing what they are doing with the law and i read that concurrence and i was like o, oof, you know, thank goodness. Again, they are again willing to allow people to vote. But I'm not so sure. It's crumbs. Yeah, it's crumbs in that it should never have been a question. And they are sowing all kinds of concern about what they would do if, in fact, this gets added to the Constitution. And that is really scary. And honestly, it's not just the dissenters in the concurring opinion, right? Like, the majority opinion has this footnote, footnote three, which says, okay, we're rejecting the dissent, but I'm going to quote the whole paragraph. The constitutional status of a pre-born child under existing Article 1, Section 2 presents complex and unsettled questions. Until our decision today to recede from this court's

jurisprudence from the past 30 odd years had assumed that pre-born human beings are not constitutional persons. Given the unsettled nature of this issue, any disclosure would be speculative and therefore unwarranted. There was a question about whether there needed to be some disclosure that accompanied the ballot question about the impact of this question were it added to the Constitution on, you know, others, including pre-born persons, as this footnote phrases it. So that's like, that's the ones who did want this to go on the ballot. So I think the bottom line takeaway is really important, both for access to abortion in Florida and meaningful democracy at all. Courts are not going to completely throttle all ability of the voters to translate their preferences into policy and enacted law. But it's so ominous in terms of the language of all of these writings. Yeah. I mean, the people maybe are pretty clear about how they feel about

fetal personhood, particularly as it relates to IVF. But I think it's also clear that maybe the courts may not be done with this issue, even if the people think that it is settled, right? Always look at the footnotes. Okay. I learned that from you all, this smart podcast. But also, yeah, I think unsettled is the word here. Leah, to your point, sure, we'll let you vote on this ballot initiative, but we may also weigh in on whether or not we feel like that vote should matter. Right, exactly. Depending on the outcome, right? did, the Florida legislature effectively undid the people's choice to reinstate and restore voting rights for people with felony convictions. And then the Florida legislature with the Florida Supreme Court was like, actually, never mind, not so much and let them get away with that. So that would not be an unprecedented move. And yet still, it is so important to make clear the stakes of abortion access for Florida, this ballot initiative for the American South.

And yet it is also difficult to understate around getting that done was incredible and provides a real template that makes me hopeful about now that this initial gatekeeping is out of the way, sort of it is now all about actually just getting the people to understand and to turn out. And obviously that's important in terms of what happens to the Florida Constitution, but also about what happens, you know, like up and down ballot. All of a sudden, potentially Florida becomes a much more competitive presidential state than it has been in recent cycles. So let's pivot to some discussion that we wanted to note that have really ramped up in recent days and really about the past week or so about the Supreme Court in the upcoming election. And here we're talking specifically about one facet of those conversations, which has increasingly focused on whether Justice Sonia Sotomayor should retire from the Supreme Court now in order to ensure that she can be replaced by, of course,

President Joe Biden while Democrats control the Senate. And I think what has really spurred this recent round of conversation has been a much talked about piece that Mehdi Hassan wrote in The Guardian calling for her retirement. And then both before and especially since some of the more online left has really been beating this drum as well. And so we want to acknowledge those discussions. And we also want to explain why we are not focusing on that particular issue. That is whether Justice Sotomayor should step down right now, even as we are emphasizing the stakes for the court and the importance of the court in the upcoming election. And at least from my perspective, I think it might be helpful to ground or set up this

discussion in terms of Justice Ginsburg's catastrophic decision not to retire, which is obviously influencing these discussions and should influence them as it should influence justices' decisions about when and whether to retire. I think a big part of why Justice Ginsburg's decision not to retire was so bad, and in my view, is a mark on her legacy is because Justice Ginsburg had numerous points where she could have stepped down and in my view should have because of what was happening with her and also the world around her. So in 2014, when Justice Ginsburg was 81, she could have retired when Democrats controlled the Senate and Barack Obama was president. And at that point, she had already had cancer twice. In 2010, at the age of 77, she could have retired also when

Democrats held both the Senate and the presidency. And also by that point, she had had cancer twice, most recently the year before when she was diagnosed with pancreatic cancer. Justice Sotomayor is 69 right now. She has never had cancer. She does have diabetes and travels with a medic, but that is a different situation. She has managed her diabetes since childhood than what Justice Ginsburg was facing at the ages of 77 and 81. Of course, there are other considerations, including thinking about one, the risk of a Trump presidency. So it's not just can you do the job now, but can you do the job

for the next four years when she will be 73 so as to ensure she will not be replaced by some men's rights activist fetus. There is also the risk of Democrats losing the Senate so that even if Joe Biden wins reelection, the Republican Senate might not allow Biden to confirm a plausible replacement for Justice Sotomayor. I just have to pause. I just got like this image of Stephen Miller with like a notebook scribbling like candidates for his like the most the most compelling men's rights fetuses out there. He's checking those cardiac activities. Or maybe looking at daycare waiting lists yes that's also a good way to look for candidates i'm also visualizing oh too old at 73 potentially

oh isn't that interesting while you know we have two people running for president who are late 70s early 80s and yes there have been you know conversations about whether at least one of them is viable as a candidate. But maybe first, I just want to say something about, you know, that in the spirit of very much understanding where the critique is coming from and the objection is coming from, like the Senate map is scary. Like, right, Manchin retiring does mean that West Virginia is almost certainly going Republican, is almost certainly like ridiculously optimistic. Is it like obviously certainly going? Maybe that's right. That's one obvious Democratic seat that will be down. And obviously, the current, you know, at 51. But you also have Montana and Ohio and Arizona and Nevada seats up this cycle all going to be really competitive. And I mean, I feel like there are great chances for the Democrats running in each of those races. So I don't want to suggest pessimism about on an individual level, but like the math is scary. I think it would be naive to suggest otherwise. So in light of that reality, like, could Justice Sotomayor have tried to do something similar to Justice Breyer and announced her retirement, like, in January or even at the end of 2023? Like, maybe. That is definitely something

that I think we can think hard about whether these calls should have been issued then and whether she should seriously have considered doing so then. But I also think there are some differences between her position now or even four months ago from Breyer's position, who announced his retirement at 83, and also who announced his retirement halfway through Biden's presidency. We are now in an election year. And I think there are real questions about whether the Senate would even process the confirmation of a successor at this point. I mean, even if she had announced in January, but certainly in April, we have very good recent evidence that Mitch McConnell will

gerrymander any rule regarding confirmation to keep SCOTUS. So I don't see... Now, of course, he does not control the Senate, but he has a lot of sway. And we also have had this recent development, which is Joe Manchin essentially taking the position that he won't vote for any Democratic nominee who doesn't have a single Republican vote. So if McConnell could keep his entire conference in line, you, I think on Manchin's own logic, lose Manchin. And then there's nothing to be done to confirm a successor. So I'm just not sure that some of the calls are sufficiently taking account of these background dynamics. And I want to say, I think that could easily have been the case in January, but we are in April now. And in April, the situation looks pretty clear in that I don't think Joe Manchin and Kristen

Sinema are going to rush to confirm a Supreme Court justice this summer. I don't think Republicans would help Democrats do that. I think the summer is when many Democrats will be off campaigning and want to be off campaigning. And while I love the idea, and I do think it's important to try to voice public criticism in order to change politics over the long run, I am not optimistic that screaming right now to get Democrats to move quickly on judicial nominations will actually move the needle such that it makes sense for a Supreme Court justice to resign right now. I mean, I think, I don't know that like if a court of appeals judge announced their retirement next week, that the White House could be confident

that they could get actually a replacement confirmed. And so to my mind, her announcing a possible retirement right now, either she does so and says, well, I would only retire if you can confirm someone by the end of the summer, but I don't even know, again, if the Senate would be able to do that or if that's enforceable or what that would look like. And if she doesn't do that, then it creates a prospect that you are leaving open this vacancy that will hang over the 2024 election a la 2016, which could just mean energizing the worst people in the country to vote for a Supreme Court justice to give them 7-2 control over women's bodies. So I guess I just think like there is a serious political risk on the other side and downside

in addition to whatever upside it offers such that I don't know what the right call is, but at least that is why, to my mind, calling for Justice Sotomayor to retire right now is not what I am focusing on or prioritizing and does not make my list of top five things that I am trying to push to get people to think about the stakes for the Supreme Court in the upcoming election. I mean, if we are talking about a second term Biden presidency, like two years from now, or whatever, maybe it's a different story. But I don't take Justice Sotomayor to have any sort of hero complex, like, I'm never going to retire because I'm irreplaceable. You know, I don't think anyone is irreplaceable. And my views on this do not depend on my admiration for Justice Sotomayor. But instead, just looking at the world around me and thinking, if she announced her retirement now, I'm just not sure that what we think might happen would happen. And there seems to be a significant political downside. And so, again, it's just not making my list of top five things that I am personally focused on with respect to the Supreme Court in the election right now. But that's just me. But like Kate and like Erin, I understand where the concern is coming from. The Senate map is terrifying.

I also don't want Justice Sotomayor to be replaced by one of the worst people in the world. This whole conversation says more about where we are in our politics than where Justice Sotomayor is, right? And what her situation is. I mean, it is about fear. I mean, this is all part of the hand-wringing on the part of Democrats who were late to realize that among the consequences of who wins or loses presidential elections is which party has the power to control Supreme Court nominations and representation for potentially generations. So welcome to politics, right? You know, and that also, though, led us to conversations about whether or not to expand the court. Right. Seems to be kind of a nonstarter with with President Biden. But I think for me, I've read the Mehdi Hassan column as well.

And in that, you know, he kind of argued that race and gender aren't really a factor here, citing that pressure on Justice Breyer to step aside, but that's just not true. I mean, with all due respect, he was one less white man and one less white person on the court. You still got Roberts, you still got Kavanaugh, you still got Comey Barrett. Like with Sotomayor gone, you do lose the court's only Latina with no guarantee for if or when she's going to be replaced, right? Like in this conversation, I don't hear anybody talking about who potentially could be the second Latina on the Supreme Court. That might potentially be a selling point for people who are interested in, you know, Justice Sotomayor stepping down as an option. But, you know, representation matters. It matters on this court. It matters in this election, even when Democrats are nervous. Right. So, like, by the way, aren't Latina voters supposed to be part of this coalition that helped to elect them?

And part of the coalition they're going to need to win in November. So I think maybe we should be asking them also what they think about whether a Justice Sotomayor needs to retire, because I'm guessing they have some thoughts. But also to underscore something you just said, Erin, none of the people calling for the retirement are really making an affirmative case about what a new justice, were there to be one put on the court right now, should look like. And maybe that makes it sort of a conversation that is very abstract and does feel focused on Sotomayor without really significantly acknowledging both what would be lost with her absence, but to Leah's point that no one's irreplaceable, who we could imagine if we actually did get to put people who were young on the court and diverse on the court, what that list might look like. So that I think is oddly missing from the conversation. I just want to say actually two more brief things. I do think that Mehdi's piece, I do think it is respectful of Justice Sotomayor

and her kind of singular role on the court. But I also just think that like the timing to go back to something I said a couple minutes ago is very hard for me to figure out. Like he wrote this piece now and not in December or January. And it feels to me a little bit like the Biden age conversations people that I genuinely respect all of a sudden decided to focus their energy on right after the outrageous report by special counsel Robert Herr. Right. That report, I thought, was wildly inappropriate in editorializing about Biden's age and his fitness. And it kicked off weeks of stories about, you know, is Biden too old? And again, a genuinely serious conversation about whether a competitive process for picking the Democratic nominee for president might have been great and healthy like six months ago or a year ago. But the same people making those arguments like a month ago were not be stirred to do so a year ago. And to decide all of a sudden it was the most important question and topic in our politics felt to me like playing into the hands of Robert Herr by making that their main focus when they made it their main focus. And that was what I found so troubling about it.

I feel similarly about the Sotomayor conversation. And then one more thing. This is related to something that, Leah, you said a couple of minutes ago. It is still an undertaking to get people to really care about the Supreme Court. I think that is changing, but it is changing slowly. And I agree, it is not the most constructive use of the limited bandwidth people across the political spectrum have for the court to focus on this Sotomayor retirement watch, rather than the outrageous decisions the Republican appointees on the court are going to be handing down in the coming months. The court, as presently constituted, is a genuine threat. It should be a genuine campaign issue. And I think

that talking about Sotomayor inevitably will distract from focus on that important issue. Kate, can I just say that wildly inappropriate is either going to be my new band name, or the name of a book that I can write about this election cycle. I'm delighted to supply fodder for either one. Yeah, no, like, I love that point, Kate, because part of what has always troubled me just seeing how people choose to use their platforms is what issues they pick to focus on. And so if you want to talk about the prospect of the next president, potentially being able to replace justices Thomas Alito, and maybe Sotomayor and or Kagan, right? If it is a Democrat, then sure, right? Get people to vote for a president who will pick good justices and not like the, you know, whoever it is that is making the shortlist for to highlight. Once again, it feels wrong to do this without Melissa, who is really our resident experts on all things Trump trials.

So I learned. I learned on the amendment. Yes, she really is. So we will just be brief and note that, you know, right now, the New York business records slash election interference case is slated to start one week from today. Now, I'm saying slated to start in a considered way because every time there is a date on which the Trump trial of some sort is going to start, something ends up interceding. So I'm not saying as a complete prediction of the future it will start a week from today, but it is slated to. And I'm not sure what delay tactics remain. So I think we actually will see a trial unfolding in New York City one week from now. They're going to recede from the trial date. That's going to be the new defense strategy. They're like, we're not seeing a postponement. We're just receding. Don't give them ideas, though. But also, like, as that's happening, I just feel like we have to say something about Trump

continuing to lash out at the judge presiding over the trial, posting information about the judge, about his daughter, leading the judge to expand the gag order to clearly include the family members of court personnel. And I don't know what the next week is going to hold, like if Trump can abide by this new expanded gag order. If not, the judge has the power to hold him in contempt. And I just think like as people who sit and watch the judicial system, obviously not state courts in Manhattan were typically watching the federal courts and the Supreme Court. But I just think that like there are unbelievably serious rule of law implications for Trump's conduct in this kind of pretrial period. And I truly don't know what the next week and what the trial is going to bring on that score. But I'm really, really nervous about the kind of trend that his rhetoric is taking. Yeah, I mean, agree. But, you know, also, are we surprised at all that the former president is going after the daughter? I mean, this is not somebody who adheres to the cultural norm that family's off limits. Wait, I think I just heard Hunter Biden enter the chat. I mean, I don't know.

No, it is a continuous performance in illustrating all of the additional latitude he receives relative to other people in the criminal legal system. Because of course, if any other defendant had posted a third of what he posted about the judges or district attorneys, family members, they would be in jail, testing the limits of the gag order by posting links that include images of the judge's daughter. Again, no other defendant is going to get away with it. And Donald Trump is continually being given benefit of the doubt, warning upon warning, and we'll see whether it amounts to anything. So thank you so much to Aaron Haynes for joining this discussion. And we look forward to many future conversations and listeners be

sure to check out Aaron's writings at the 19th, as well as on the podcast, The Amendment. Thanks, Erin. Thanks so much for letting me hang out with you folks. Anytime. It was great to have you. One more quick thing before we move on to the interviews, and it relates to the Good Neighbor cases. So there was an important development in these cases, captioned Ohio versus EPA, which are challenging the EPA's federal plan for limiting

pollution from upwind states to downwind states. These cases, you might recall, were procedurally super complicated, so we're not going to rehash everything. But briefly, the complaint that emerged from the oral argument seemed to be that because the EPA had not specifically acknowledged the possibility that a particular number of states would be subject to this rule, the good neighbor rule, the EPA had not specifically explained why the rule would be worth it under those conditions, that is, under the exact permutation in the number of states subject to the new rule. And as we said when we discussed the oral argument, that was a weird ground on which to potentially stay an EPA rule indefinitely, since that failure to explain

things about how the rule would apply under particular circumstances is something an agency can ordinarily fix and often fix quickly, which is why a lot of cases might just pause the rule for like 30 days, give the agency a chance to explain. But here, the challengers were asking the court to pause the rule indefinitely while the litigation proceeds. But here, the EPA actually went ahead and addressed this purported failure to explain problem with its good neighbor rule, because some groups had filed a motion for the EPA to reconsider its good neighbor rule. And those groups had urged the EPA to reconsider the rule because the EPA had not considered the possibility that the particular permutation, the certain number of states that

are actually subject to the rule would be the number of states subject to the rule. And so now, guess what? The EPA has now considered it. And they explained why the good neighbor rule is still in the EPA's expert judgment, sensible, justified, reasonable, warranted by the evidence, so on, so forth, given the number of states who will be subject to it. So we will see how the Supreme Court deals with the fact that the EPA addressed the only argument the court seemed interested in using to invalidate the good neighbor rule. We're sure the court will behave in a very judicious, reasonable, principled way that acknowledges that the EPA has now considered this argument, which, again, was not even apparently legitimate grounds to stay the rule indefinitely to begin with. But we shall see, we guess.

I'm excited about Sam Alito's, you know, temper tantrum about the EPA's efforts to manipulate and abuse the federal judicial process. I really with bated breath await that writing. I can't wait. I can't wait. He's like, they are undermining my authority. Respect my authority, Cartman Alito here. So, yeah. Yep. I think that's what we have in store. All right. So let's leave it there. That should get you up to speed on the most important recent goings on. Up next is our deep dive on a new phenomenon to be on the lookout for, judicial gerrymandering. Welcome back to Strict Scrutiny. Every now and again, we like to spend some time talking about legal and judicial developments that are popping up around the country. And when we do this, we think it's really important to highlight some of the folks on

the ground who are actually cataloging these developments and working with or around them. And today we are so delighted to be joined by two people who really understand that all politics is local and sometimes all law is local too. And they've really been focused on securing rights at the local level in really important areas. So our first guest today is friend of the pod, Jill Habig. Jill is a graduate of Yale Law School and Georgetown University, and she is also the founder and president of the Public Rights Project. Welcome to the pod, Jill. Thank you so much. a small full-service law firm in Nashville, Tennessee. She began her legal career as a public defender working at Nashville's Metropolitan Public Defender's Office. And in the wake of Dobbs and legislative efforts in Tennessee to criminalize abortion care, Tyler has become something of an expert on Tennessee's abortion law, and she's worked with other lawyers to found and build the Tennessee Freedom Circle, an organization

that advocates to change abortion laws in Tennessee. Tyler, welcome to Strict Scrutiny. Thank you. Glad to be here. We know that you all do different things. Jill, you are working with Public Rights Project. Not everyone's heard about PRP. Can you tell us a little bit about what you're doing at PRP? And then Tyler, if you could say a little bit about what you're doing with the Tennessee Freedom Circle. Yeah, thank you. Jill? It's so great to be here. This feels a little bit about what you're doing with the Tennessee Freedom Circle. Yeah, thank you. Jill? It's so great to be here. This feels a little bit like being let out of the Love is Blind pods.

I've like fallen in love with all of your voices. And now we get to see each other face to face. So thanks for having me. I hope we're not going to end up like Jimmy and Chelsea. I want this to be more of an Amy and Johnny story. Hopefully not. Kate doesn't know who any of these people are. We can debrief on Clay later. So I think the Public Rights Project works in about 41 states.

And our mission is really to help local government officials use government power more effectively to advance civil rights and democracy. I started the organization about seven years ago, for those of you counting. Yes, that is the beginning of the Trump administration. And, you know, I had spent my career in state and local government kind of building impact litigation teams and really saw a need to build a stronger bench and playbook at the state and local level to both counteract sort of retrenchment at the federal level, as well as just use the power that we have at the state and local level to advance the rights that we all want to protect. So Tyler, can you tell us a little bit about what you're doing with the Tennessee Freedom Circle?

Because I actually think there are a lot of analogs to what Jill is doing with Public Rights Project. So back in 2019, even pre-DobBS here in Tennessee, the Tennessee state legislature was putting in force laws that were criminalizing certain abortion care. So professionally, as a practitioner, I began working with people in organizations that provide abortions because all of a sudden they needed criminal defense lawyers here in Tennessee. Then once DOBS came down, there was kind of an outcry by lawyers, by everyone, but also by lawyers once our trigger ban went into effect. And we began to organize around reproductive freedom. And so that's where the Tennessee Freedom Circle comes from. And we are working to try to influence legislation around abortion and reproductive health care, and also support litigation that may come to Tennessee. The reason why we brought you both here today is because the work that you're doing is really complimentary in a lot of ways. And separately, I met with both of you earlier

in the year. And interestingly, you both raised an issue that I'd never heard about and I haven't heard talked about before. But you both basically said something in our conversations that related to the same phenomenon, which is what you, Jill, have termed judicial gerrymandering. So Tyler, when I saw you in Nashville, Tennessee, you mentioned that the state courts had recently undergone a major legislative change whereby the Tennessee state legislature had organized the judicial districts in such a way to limit the authority of judges in blue parts of the state, like Nashville, Memphis, and Chattanooga. And that was really important for questions like abortion, because if those cases were filed, they couldn't necessarily be heard by a judge in Nashville, Chattanooga, or Tennessee, which is where I think reproductive

rights groups would think first to file those cases. Instead, they had to be filed in a special court that was composed of judges drawn from all different parts of the state, three judges from different parts of the state. So it wasn't necessarily just a blue city judge. And again, a different kind of forum shopping. And the state legislature really tried to put the kibosh on it by requiring this new three-judge format. Jill, you later talked to me about this judicial gerrymandering, and you sort of mentioned a similar kind of thing. You didn't talk about it in the context of abortion, but the work that state legislatures are doing to redraw the lines for judicial districts to ensure

that more progressive or liberal decisions are harder to come by. And so I guess I had never really thought about this. We normally think about gerrymandering in the context of racial or partisan gerrymandering of the legislatures. But now it seems to have jumped the line to the judiciary. So Jill, can you tell us like what your definition of judicial gerrymandering is? And then Tyler, maybe you could respond by saying what you've seen happen in Tennessee. Yeah, so I think it's really important to take a step back to understand why this is happening. So if we think about from the top, right, U.S. Supreme Court taken itself out of the game of civil rights and democracy for the most part, unless it's being hostile to those things. Right. Congress deadlocked on most of these issues and not really taking much action.

So that leaves the states as the kind of primary arena for fights on these issues. And you have legislative gerrymandering that is given a lot of state legislatures free reign to pass crazy shit, you know, on a variety of topics. Who is the only check left on those state legislatures, state courts. So the natural next step, let's take over the state courts as well. And so I think what this is really about is not just abortion. Certainly it's relevant to abortion. It's really about this broader power grab to override voters and the people that voters elect to do their jobs so that there's no kind of minority rule. Right. That's partially what partisan gerrymandering and legislative gerrymandering does. Right. It allows a political party that does not win support from a majority of the voters to nonetheless hold a majority of seats in the legislature. And judicial gerrymandering is a way of kind of cutting off one possible check on that

at the knee. Yes, it's a heads I win, tails you lose kind of situation, right? So when I think about my definition for judicial gerrymandering, I think about the court system overall, changing and rigging the rules of the game to ensure that a majority doesn't actually have a meaningful say in how our courts operate. And so I would include both prosecutors and judges as sort of the actors in that judicial system and efforts to remove prosecutors, remove judges in nefarious ways, change the rules by which those judges or prosecutors are elected or appointed. That is how I think about judicial gerrymandering as sort of like a takeover of the judicial

branch of government at the state level. So Tyler, you are nodding vigorously. Does this cohere with what you've seen in Tennessee? And if so, how? Yeah, it sure does. You have to also step back from the starting point that here in Tennessee, our trial court judges are popularly elected. And so it was always the case, for centuries it was, that when you filed

a lawsuit challenging the constitutionality of a statute in Tennessee, or you challenged a redistricting map here in Tennessee, you filed where the seat of government is located here in Nashville. And that would be heard by a chancellor elected by the people of Nashville. So that became hugely problematic for our Republican supermajority when they start passing all of these crazy laws like Jill was talking about. And so what they did in 2021 was they created a three judge panel. So you have to also remember, Tennessee is a really long state east to west. And so we see ourselves as being three grand divisions, Middle Tennessee, East Tennessee and West Tennessee. And so now each three judge panel has to have a judge from each part of the state,

from each grand division. And those are the only judges that can hear any civil lawsuit that's claiming some sort of constitutionality question about a state statute or a redistricting map. So even if you have a judge, even if you file in Nashville, a Nashville judge will be on the panel, but you're guaranteed to get a judge from the East Division and from the Western Division and have a, you know, and mostly, most likely, you're going to have two rural judges and an urban judge sitting on your panel. And I just want to draw an analogy between what you were describing, Tyler, and something we've talked about on the podcast with respect to the district courts in Texas, and that is that the state of Texas could, if it wanted to, file its lawsuits where the Texas

Capitol is located, Austin. And in part for that reason, Republican senators have been trying to block Joe Biden from appointing judges to that district in order to increase the odds that a Republican president could nominate judges to be in that district and thereby lower the odds that people who file cases against the state of Texas could do so in the state capitol and obtain a judge who is not, let's say, the foremost abstinent advocate for the country or the chief scientist like Matthew Kaczmierk, or as Mosul was saying, kind of crazy. And I think judicial gerrymandering is related to that phenomenon as well. Yeah, and I think it can take a few different forms. So Tyler's example in Tennessee sounds

a little bit similar to what's happening in Mississippi, where a majority white state legislature is executing like a full takeover of majority black Jackson, Mississippi. They've created an entirely new court with concurrent jurisdiction around Jackson. They've created a new police force that is state appointed. So that just bypassing voters. Have they called them the slave? It's some Orwellian like the capital improvement District, you know, something like that out of Hunger Games. And then they also created, they tried to create just superimposed onto the existing court and state appointed judges to sit alongside popularly elected judges by Jackson residents. So just to say like, nice job, Jackson voters, you elected your people, we're just going to superimpose our white state appointed officials on top of all of your elected officials. And the only part that's been beaten back has been the

state appointed judges in the existing court, this Mississippi Supreme Court actually beat that back under the Mississippi Constitution. Shocking to all of you, the Fifth Circuit has not found much problem with any of the other issues that have been brought through federal courts. So this is such an interesting refocusing. So in the last couple of years, I think it's increasingly clear to folks on the legal and political left that there has been woefully insufficient attention to state courts as institutions and to state judicial elections. And so I think that's in the process of being rectified. But you are drawing attention, as Melissa was just saying, to something that a lot of people have not had on their radar at all, which is it's not just about elections for the

judges who sit on state courts, but the manipulation of the institutions, their jurisdiction, their composition, and a lot of state-city kind of like aggression that we are seeing red states, blue cities, and red states trying to engage in various forms of takeover. So it's so important to bring all of this into the conversation. But to shift a little bit from courts, and your Mississippi example started to allude to the police force as well. So I like the focus on judicial branch and judicial institutions as encompassing DAs and maybe police officers and election administrators, which I think we want to try to talk about in a couple of minutes as well. But can you say a little bit more about how this phenomenon is playing out,

maybe with examples with respect to prosecutors in particular? Yeah, so we've been documenting a really widespread trend to get at prosecutorial independence and basically override this trend we've started to see of voters just electing more reform oriented prosecutors, particularly black prosecutors and prosecutors representing black and brown cities and counties. And so there's several examples of interference that we've seen in Florida, we've obviously seen Governor DeSantis remove two prosecutors from office, based on doing exactly what they told their voters they would do when they came into office, such as, you know, taking a pro abortion stance on the use of resources by their offices,

not prosecuting every single crime equally, exploring things like diversion, etc. That's one example, Georgia, we have litigation in that state over a Republican created partisan oversight commission that essentially has unilateral power to discipline and remove elected prosecutors for a decade, simply for policy disagreements, or even statements that they have made to their own voters about their priorities for prosecution. And so this is really a retaliation effort. It's really meant to say, if your voters elect you and we disagree with what your voters said and what you have said, we can just end run and kick you out of office for a decade because we don't like what you've done with the power voters have given you. And so, you know, we had a good win last year in the Georgia Supreme Court

on the Oversight Commission, but the legislature is back with a new fix. And so we're going to be, you know, back in court in a matter of days or weeks on their new bill. So it's, I could give more examples in Tennessee and Texas and elsewhere, it's becoming a national trend. So Tyler, can I ask you something, which is, it feels like, as Kate was saying, the progressives and Democrats have started to get clued in on the importance of states and state courts. And yet, even at the same time, it feels like conservatives are still a step ahead in being entrepreneurs about how to maximize power at the state level by gerrymandering it in particular ways. Authoritarian entrepreneurship. Yes. That's

a new article. We should write that. Okay. Let's do it. Let's do it. So I guess, you know, Tyler, I'm just curious, what should we do so it feels like we're not always coming from one step behind. Why can't we be some geniuses, too? Right. Yeah. OK. Yeah. I mean, I look at this 2021 law and it goes back further.

Right. They've been they've been trying to tinker with the judiciary for a long time. You know, back in 2014, there was an effort to unseat three of our Supreme Court justices. They had happened to be the three that had been appointed by Democratic governors, and they were up for a retention election. And so there was a sudden sort of dumping of money into the state of Tennessee to try to get them, to get the voters to not retain them. So there have been political machinations, and now there are legislative machinations.

And we're seeing exactly these same things that Jill was talking about. It's almost like there's dark money. Almost. Yeah, that was definitely true back in 2014 when there were these efforts to get, you know, to unseat the democratically appointed Supreme Court justices. And then fast forward, we get a legislature who gets pissed off at some rulings that were made by some Nashville judges. And they just decide to create this whole new super court, basically, to deal with their statutes when they get challenged. Yes, they've been at this for a while, and we need to be at it starting yesterday. And I would say it's actually been, it's been like a 40-year strategy, right? If you think about even just like the ERA fights, the state and local government fights after Roe, right? If you think about even just like the ERA fights, the state and local government

fights after Roe, right? Like this is a long standing thing and we've got to get in the game in a bigger way. So can I ask one of you to help distinguish between something we've talked about as problematic on the podcast, which is the kind of judicial shopping or judge shopping that happens right now, where plaintiffs can file case in Amarillo and then get Judge Kaczmarek. But, you know, that doesn't seem great. And then what the legislatures are doing here to prevent people from being able to file cases in Nashville or Memphis or different areas in order to actually get local judges. Like, how are these things potentially different? So at least in Tennessee, we have an advantage because our venue statute for constitutional

challenges says you can file where your plaintiff lives. You can still file in Nashville if you can find a Nashville plaintiff. And that tends to be what happens now is that you find a Nashville plaintiff so you know that you'll have at least one Nashville judge. And then after that, you're at the whims of the Tennessee Supreme Court who appoints your other two judges, right? So at least we have a venue statute on our side that helps us with one of our judges. I totally agree with that. I think there's a difference between trying to win the game and trying to cheat the game. The forum shopping has been an issue, right? You try to find a way to file in the Northern District of California if you're trying to advance civil rights and those sorts of things. But there's a difference between that and sort of a, we need to change the rules,

move the goalposts, so to speak, and make sure that actually only one side can play those games. And if the other side tries to play those games, they're just going to change the rules and make that impossible. So I think it's different than, for example, like just trying to push through a bad policy through a state legislature that is representative of the state without gerrymandering, right? State legislatures can make bad policy all the time. It's not all unconstitutional. But when you have a state legislature that's been totally rigged by warped districts, where you have, you know, a 50-50 state that is a two-thirds majority of one party, and, you know, that's a different thing. And so I would sort of liken it to that kind of distinction as well. Well, not to put too fine a point on it, Jill, it's the difference between, you know, having electoral distortion because of

legislative gerrymandering and then compounding the distortion by having the legislature then rejigger the courts that would be in a position to call them on the gerrymandering in order to make the courts themselves distorted and a really weak check on legislative power. And so it's like disadvantage compounding. Yes, exactly. I'd also add one other difference, which is it's a difference between minority rule and local rule and also a difference between empowering certain communities to have meaningful representation and squashing, for know, for example,

multiracial democracy. So when you have a local judge like Judge Kaczmierczak, right, like he's not elected, he's appointed, he's appointed in order to advance an agenda, whereas the judges from Memphis, Nashville, like they are elected in order to represent their locality, whereas Judge Kaczmierczak was basically appointed to further a particular minority rule version. Similarly, when you disempower the communities in Harris County, in particular places in Jackson, Mississippi, in Memphis and Nashville, right, you are impeding one mechanism for multiracial democracy and superimposing like white supremacy and white minority rule. Yeah. So, Tyler, Tennessee has seen a lot in the last year. So we saw the ouster of two of the Tennessee three from the state legislature. Notably, the Tennessee three represented three of the most populous cities in Tennessee, Nashville, Chattanooga and Memphis, all of which have sizable minority populations. And I don't think that went unnoticed. It seems like when you take that and you layer it on top of the judicial gerrymandering that you report happening in the

state right now, that's also an effort to perhaps disenfranchise individuals in those localities that have more diverse populations. Is part of the strategy just, one, to get ordinary Tennesseans to understand that this is a form of gerrymandering, this is gerrymandering, and it's really bad and it's a problem? And two, it's especially bad because it is part of a pattern and practice of disenfranchising minority communities. Is that the language that we're talking about? Or is it just harder to even explain this? I mean, it's actually quite technical. Right. So it's clearly an attempt to consolidate all of the power in Tennessee into one group of people, right? But when it's done at the judiciary, when it's done in your DA's offices, when it's

done by dismantling your community oversight board that was, you know's done in your DA's offices, when it's done by dismantling your community oversight board that was, you know, put in place by voters, that doesn't feel as loud or as, you know, personal, perhaps, as watching the Tennessee Three being escorted out of the Capitol, right? And so I think it is harder to explain, but you're right to say that it compounds all of the other problems that are already baked in by having the Republican supermajority. Can I give one example of what Tyler's talking about, which is just kind of choking off avenues for communities to gain power in a variety of ways, really targeted at black and brown communities. So HB1 was a DeSantis bill that was criminalizing protest on the one hand, and then over giving the governor a mechanism to override local police budgets. So basically,

what DeSantis was saying to black voters and minority communities in Florida was, if you protest, we'll throw you in jail. And if you try to influence your local government, if you organize and participate in democracy, we're going to override your wins at the government level as well. And so there have been a number of lawsuits that have actually been successful, including ours. We represent a group of cities pushing back on that, but it really is aimed at saying, choking off all avenues for gaining power and telling these communities, if you want to advocate for reform to policing, again, it's like the heads I win, tails you lose sort of mechanism. Jill, can I ask you at this point to sort of pivot with us to election administration? Obviously, you guys are working on a range

of different issues and sites of local power. So can you tell us about Cliff Tatum and Harris County, Texas, and maybe more broadly your work on those election related issues? Yeah, so I think our election work is really of a piece with what we've been talking about, which is really kind of working with local government officials to help them just be able to do their jobs effectively without override from the state or harassment and harassing litigation from community members and election deniers. So Cliff Tatum is one of our partners. He used to be the Harris County election administrator. Harris County, which is where Houston is, has actually had a lot of innovation in election administration in the last couple of cycles.

They did drive-through voting in the 2020 elections during the pandemic. Shout out to Chris Hollins. I know. Running for office in Houston right now. Go Chris Hollins. Yes. Go Chris. Right. They had drop boxes. They had all sorts of mechanisms to help people, I don't know, crazy thing, vote safely during a global pandemic. Weird. Right.

And they've just faced an onslaught of harassment and litigation to overturn that. So in 2020, there was efforts to overturn 100,000 ballots that were cast by drop box voting in Harris County. And Cliff had to have a security detail in the 22 elections because of all the threats that he was receiving. And finally, the state just eliminated his office entirely and said, like, you're doing too good of a job helping people vote. We need to take away your office and make sure we have state control. And so we're actually building now a legal rapid response hub for election administrators across the country to help them deal with this kind of harassing

litigation that they're facing. A lot of it's based on conspiracy theories. It's like, you know, folks who are way too online filing lawsuits to try to eliminate electronic voting or get ballots thrown out based on, you know, crazy conspiracy theories and stuff like that. And so even though a lot of the litigation is not really strong on the merits, these offices are not set up to deal with this volume of litigation. They're set up for a pre-2016 world. They're set up to give advice to the election department about any regulatory changes, not to deal with this kind of litigation. And so we're basically providing technical assistance and litigation support to the government officials who are just trying to do their job so people can vote and the election outcome can match what people voted for.

So Tyler and Jill, we wanted to give both of you a kind of final opportunity to share with our listeners any additional thoughts you'd like about the work you're currently doing, what they can do to support your work or other kind of instances of the phenomenon that we're talking about. Like I said, from the jump, you know, I've both sort of personally and professionally been consumed by sort of the changes in abortion law, particularly in Tennessee and how they have affected Tennesseans. And so, you know, I'm watching, of course, there's a three-judge panel that's got an abortion case right now here in Tennessee. We were really happy to see the Center for Reproductive Rights file here. Nothing too much has happened yet. They have a motion date coming up for a motion to dismiss and a motion on the preliminary injunction. So we're watching that very carefully and seeing how, you know, that can help to both,

you know, sort of shape hearts and minds, so to speak, here in Tennessee, but also potentially broaden access to abortion here in Tennessee. And just to explain to our listeners, that case is similar to the Zorowski litigation, where CRR is arguing that the state needs to clarify when abortions are available under the medical emergency and exemptions under the state's abortion law. That's right. Our criminal law is very similar to the one that's in Texas. It's worded almost exactly the same. And so it's essentially the same challenge that's been brought under the Tennessee state constitution. So, you know, it will be interesting to me to see how that will come out. We've seen

a lot of the three judge panels here in Tennessee actually sort of siding with Nashville on some of these overreach statutes that have been passed. There were four lawsuits filed last year by the Nashville legal department saying, you know, hands off our city. And so far they've, they have prevailed. They're at different stages of their proceedings, but at the phases where they're at, whether preliminary injunction or on the merits, they've won. But are we going to see something different on abortion? These judges have to go home and be reelected, right? And so is this going to be a departure sort of for the success on the left with these three judge panels? different on abortion, these judges have to go home and be reelected, right? And so is this going to be a departure sort of for the success on the left with these three judge panels? I'll be watching that. And we'll be sort of standing by with lawyers along with the Tennessee Freedom

Circle, and sort of cheering on from the sides to see if we can make some headway with the lawsuit. Yeah, and I think for Public Rights Project, the message I would share with folks is that all is not lost here. Like we've talked a lot about a lot of these threats to state courts and at the state level. But we've actually seen that we can win in a lot of these state courts, even in courts we would not accuse of being like bastions of liberalism, right? We've had victories at the Missouri Supreme Court. We've, you know, had victories in Florida and elsewhere. And so it is actually possible, I really believe, to make a lot of progress. If we really think about a holistic strategy, we need to use the courts, we need to use the ballot box, we need to use the legislation,

organizing all of it together. But I think we overall need to increase our risk tolerance here and our willingness to lose because one loss can fuel the next win. And so that's one of the things we think about a lot at PRP is just what is going to move the ball forward, even if it's not going to be a complete victory and what's going to increase the friction of these authoritarian activities so that they don't feel like they can get away with anything with no resistance. So that's a message I'd leave folks with. There's actually a lot of opportunity to make progress here on abortion and a number of other issues. Just keep bringing it to them.

We'll try. Thank you, Jill and Tyler. Again, these are really concerning developments. And again, I can't tell you how shooketh I was when you each independently raised this with me. And I knew immediately that it was something that we needed to talk about on the podcast. So we are so grateful to both of you for coming in today to share this with us and to help our listeners find a new soapbox to get on. Not just about the courts, but about this effort to manipulate the courts to limit the possibility of progressive decision making. So thank you both. Thank you. Thank you.

So before we go, two small things. One is we wanted to wish a happy birthday to our super fan, Brian Esser. So happy birthday, Brian. Second is we are going to be recording our annual listener grab bag episode at the end of this month, which means we need your questions. So check the show note for a link to a Google form. You can also find that Google form at strictscrutinypodcast.com. And if you have a topic you'd like us to discuss or have some questions you'd like us to answer, please send something in just for some ideas. I am happy to discuss the current season of Vanderpump Rules, the previous season of RuPaul's Drag Race, Beyonce's most recent album. Also, obviously happy to offer any commentary

on the tortured poets department. And again, this is just to get your ideas rolling. So by now, you've all heard of the tragic accident of the Baltimore Bridge collapse that killed six people. On Crooked's daily news podcast, What a Day, host Priyanka Arabindi and Trayvon Anderson talked to Baltimore Mayor Brandon Scott on the bridge recovery efforts and Biden's visit to the crash site. The episode dropped last Friday, so make sure to subscribe to What A Day so you can hear that conversation and so you never miss an episode. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Littman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell,

audio support from Kyle Seglin and Charlotte Landis, music by Eddie Cooper, production support from Madeline Herringer and Ari Schwartz. 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. So don't let those good reviews recede. Thank you.