Strict Scrutiny - Flushgate

Episode Date: May 11, 2020

In this jam-packed episode, Jaime and Melissa recap the Supreme Court’s first-ever telephonic arguments, delve into how three men advocated for or against contraceptive coverage for women, preview next week’s high-profile arguments, and recap some recent opinions.  Whoa, it’s exhausting even just typing that. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, a podcast so fierce it's fatal in fact. I'm one of your hosts, Melissa Murray. And I'm Jamie Santos.

And we are so excited to be with you today. We have so much stuff to talk about that there's not going to be any witty banter. We're not going to tell you what we've been doing in quarantine. We're just going to dive in because we have one hour to cover literally everything that happened this week. And there was a lot. So Jamie, do you want a roadmap for us? Yeah. So as always, we're going to start off with some breaking news. And unfortunately, we'll include the type that I need to sit down for. And then we're going to discuss some highlights from the course first ever live streamed oral arguments. Then we're going to talk some opinions and we'll conclude with some court culture.

Excellent. So one of the big pieces of news that came out this week was that Justice Ruth Bader Ginsburg was briefly hospitalized. So on Tuesday, May 5th, Kathleen Arberg, who heads up the Public Information Office for the court, issued a statement explaining that the justice had undergone non-surgical treatment

for an infection that was caused by a gallstone. And she was expected to be hospitalized for two days at Johns Hopkins, but that she would be working from her hospital bed like a capital B boss. And in fact, she was, and we'll talk a little bit about that later, but she zoomed in on those telephonic conference calls for oral arguments the very next day. And now she is home, resting comfortably, and is expected to make a full recovery. So good for her. Stay well, Justice Ginsburg.

And I'm really glad she kind of keeps such a close eye on her body and her symptoms that she catches everything quickly. And I hope we can all do that. The second piece of breaking news is COVID related. We've been trying to keep you apprised of all of the COVID and the court news. So this week, a group of Pennsylvania businesses asked the court to block the enforcement of the governor's stay at home order. That order required the closure of the physical operations of all businesses that were deemed non life sustaining. And the petitioners

argued that the order was doing unprecedented damage to the economy and that it was an unconstitutional taking in violation of the Fifth Amendment. The application was denied without dissent. I don't think that's super notable because the theory, the legal constitutional theory seemed kind of whack. But we've been tracking all things COVID in the court, so we wanted to pass this tidbit along as well. And other news, like we're going to go into the way, way, way back machine. Do you remember, Jamie, like 750,000 years ago, there was this thing called the Mueller Report.

Do you remember that? Mueller? I mean, it's ringing about a little bit. Big recollection. Big recollection. It was a big thing around March of 2019, May of 2019. But in any event, you'll recall that in March of 2020, the D.C. Circuit and a panel that included Judge Rogers, Judge Griffith, and Judge Rao upheld a trial court's order that required the DOJ to disclose to the House Judiciary Committee portions of the Mueller report that had been redacted, along with some grand jury transcripts and materials that had been kept secret as part of the investigation. Well, on Thursday, May 7th, the government made

clear that it plans to file a petition to the court to review the D.C. Circuit's ruling, and while it gets that petition together, it has asked the court to temporarily block the release of the grand jury materials until the petition is filed and the Supreme Court rules on the case. So it's pretty much a minor motion just to sort of stay things until the petition can be filed and decided on. And on Friday morning, the court granted this request, which temporarily stays disclosure of those documents until the court has made a decision about the government's petition for review. So nothing really to see here. But I literally, when it came up, the Mueller report, it took me like two minutes to be like, what was that again? Like, life comes at you fast. Totally. And for listeners who don't know that much about the court stay process, there's two different types of stays. One is an administrative stay, which is a really short term, like one week long stay that gives the court a chance to determine whether

there should be a longer stay that will last until the cert petition is resolved. And if cert is granted until the case is resolved. And so this is just that initial administrative stay. And the House of Representatives actually assented to this one just for a one-week stay, but they have not assented to the longer stay that would stop things until the cert petitions resolved altogether. In addition to all of that breaking news, and that was actually a lot of stuff that happened in just a short period of days at the court, that wasn't even the big news. The big news of this week was that the court heard its first live-streamed audio arguments. Right? So let's dive right into it.

All right. So the first week of the May sitting, an historic, unprecedented chapter in the court's history. Let's jump in. Before we get into the nitty gritty about the actual arguments themselves, I was hoping we could dish a little bit on how we think this new format went. Fair. It had some ups and downs. One of the downs is, you know, there are sometimes we realize that the justices are just like us.

It's like those, isn't it like Us Weekly? Like the stars, they're just like us. And it shows like someone taking their laundry to the laundromat. So some folks forgot to the laundromat. So some folks forgot to use the mute button. So Justice Sotomayor, bless her heart, in two days of arguments, she forgot to unmute herself and the Chief Justice had to go through a Bueller moment. So here's a couple of those fun clips. Sotomayor?

Justice Sotomayor? Justice Sotomayor? I'm sorry, Chief. Ms. Ross? Justice Sotomayor? Justice Sotomayor? I am sorry, Chief. Did it again. Mr. Michelle? But she wasn't the only one, I think. So I think the third day, I think Justice Breyer also had an unmuting problem as well. But we've all done that. Like, have you not been on a call or on Zoom where you forget to unmute yourself and you just start talking? I always Melissa, I did that at the beginning of us starting this recording. I did not realize that I was muted. So 100 percent. She is all of us. Justice Sotomayor is all of us. And I think Erica Ross also forgot at the end of her first at the beginning of her rebuttal. But even more, even worse than forgetting to turn off your mute button is forgetting to turn on your mute button, which a justice did in day three of arguments. What you see is said is that when the subject matter of the call ranges to the topic, then the call is transformed. So do we know it was a justice? Like, are we sure? So, OK, 100 percent sure it's a justice because no oral advocate is going to like be so relaxed during argument that they go to the bathroom during their argument. It's just there's no change.

Obviously, what Jamie is talking about is the flush heard around the world, flushgate. So during the oral arguments in the robocall case, Bar versus American Society of Political Consultants, while Justice Kagan was questioning Ramon Martinez, one of the lawyers, there was a little bit of rustling and then the very distinctive sound of a toilet flushing. And I think when that toilet flushed, I just, all of my hopes and dreams of future live streamed audio oral arguments, which were gashed entirely. I could just see Chief Justice Roberts being like, seriously. This is why we can't have nice things. This is why we can't have nice things. That's exactly what I thought. Okay. So who do you think it was?

Oh God. Well, I have my theory. Okay. I have a theory too. So I want to hear yours first. Oh, I don't, I mean, like, here's the thing, right? My theory kind of trades a little bit on gender stereotypes because I truly believe that women can hold it for like endless periods of time. And I'm only saying that from my own experience. I taught class while vulgarly pregnant. And if you've ever been pregnant, you know that the baby just sort of sits on your bladder. So you have to go to the bathroom all the time. And I taught for an hour, an hour and a half at a time. And I drank water the whole time. But I never broke.

I literally got through every class. So I know I can hold it for that long. And I imagine most of the women on the court are used to being in situations where there isn't easy access to just relieving yourself. And you just hold on. So my theory is that it's one of the male justices, but that's probably not fair. So I have a similar theory which gets me to a similar,

or a different theory that gets me to a similar place. So at first I thought maybe it was Justice Sotomayor because she got afraid to mute herself at all. But then I remembered that Justice Breyer often gets up during oral argument at the court and he'll like leave and I think go to the bathroom and come back. And so that made me first think he might actually have to go to the bathroom during argument. And then I also recalled when I was listening, you can kind of hear the sound of a zipper. And I feel very strongly that no women who are working from home right now are wearing pants with zippers.

Girl, everything is elastic waist right now. Absolutely. Absolutely. So I think it was Justice Breyer. And you know what? It's fine. There are a lot of zippers. I mean, this is the Supreme Court, a place where you have a better chance of hearing

an oral argument by Paul than a woman. This is true, but he always wears formal clothing. Always. I've heard stories about him going to the Supreme Court gym in his suit and working out in his suit and coming back. So I mean, he's just very formal. I feel like Justice Breyer. Ashley Feinberg from Slate also thinks it's Justice Breyer. And she literally went down a rabbit hole and went through so many different, it was truly investigative journalism for which, if there's not Pulitzer consideration for this, that something is wrong in the world. But she gave a very well-reasoned theory that

also assigned blame to Justice Breyer. Maybe she'll get a Nobel Prize. Or a Pulitzer. Sorry, I can't help it. So here's my question. Some people have argued, like Mark Joseph Stern from Slate has suggested that this is the end of any kind of live streamed audio. And I have this sort of like, I can understand why, but it's really not the public's fault that this happened. And certainly this is not a situation I think would happen at oral arguments that were held at the court that were live streamed while they were being held in sort of an ordinary course of things. So again, I think the whole experiment this week was a great experiment. I think, you know, I heard from so many people who were just really jazzed to hear the court, like it never occurred to them that this is how the court functioned. You know, for those of us who listen to them all the time, it felt a little different because of the sort of the seniority ordering of the questions as opposed to kind of the free for all and the kind of wide ranging discussion. And, you know, I don't know that you really got a good sense of what it is really like to hear oral argument at the court. But I think that there

were some people who have never, ever heard the court at work. And it was really fantastic. And it was fantastic to hear it as it happened, as opposed to waiting until the end of the week and then knowing that you could go to the court to download it and then actually taking the initiative to go and do that. It was much more immediate. They come out Friday nights, right? Like I spend my Friday nights listening to oral argument audio on Oyas, of course, but other people have live, right? While cutting audio for after we tape. Yeah, no, I mean, I totally agree with you. I'm hoping that this is something that stands the test of time. And I also think this whole flushgate situation could have been avoided by actually using Zoom because presumably you're not putting your laptop into the laptop.

If this had happened on Zoom, we'd have bigger problems. Yes, this is true. But overall, you know, I think we're going to see – it seemed to get better as the week went on. I like that the Chief Justice gave some more time. We'll talk later about how long some of the arguments went. But he allowed when there were good lines of questioning going, he allowed it to go on a little bit.

Which is interesting because he really got to kind of control the flow of oral argument, which is not really the case in the ordinary course of things. Yeah. And I do think it impacted his ability to ask questions. He's usually a really good questioner. I think he wasn't great this past week, but he was keeping track of time and refereeing every... So that's just going to happen. So that's kind of a shame, but I don't love this format, but I love the fact that it is live streamed and I think the court should continue doing that. Well, and I love that we heard Justice Thomas.

So that was the big question, would Justice Thomas speak or would he, when it got to his turn and he was immediately after the chief justice because he is the most senior justice on the court right now, would he pass? Like you're like almost like like cold calling, like, I don't have an answer. I don't have a question. But he asked questions in all of those cases. And he probably talked more this week than he has in, you know, maybe the last five years of oral argument. And I actually think you got to see a glimpse of what he's probably like in conference as opposed to what

he's like in oral arguments, like sort of like the things that he's pressing. I think you got a sense of like what he's like with his colleagues as opposed to what he's like in oral argument. Yeah. The biggest downside to me of this format was that you didn't get to see the justices crosstalk, which I think really gives you an insight as to how they communicate with each other, just like you're talking about, how they talk at conference, how they try to convince each other. And I missed that as a court watcher. But I think you did get a sense, especially with the more junior justices like Kavanaugh and Gorsuch, they were really carefully listening to their colleagues. And I don't know if that's always

the case at oral arguments. Like some people just have questions that they're going to ask, and it doesn't matter what the flow of the conversation has been. They're going to ask these questions. You're thinking of your next question or like, how can I jump in? They were actually, and you know, there were, I think a lot of members of the court did this, but it struck me that the two, they were sort of cleanup justices who came back and you didn't answer this question that so-and-so posed. Like, I want to go back to what Justice so-and-so said about this. And they really kind of tagged back to things that the litigants were avoiding or had been more elusive on in their answers. Yeah, I think they maybe had the most benefit from going last for that reason. They

got to really hone in on the stuff that hadn't really been resolved before. The last thing that I wanted to mention before we jump into the arguments themselves is that the first argument on Monday highlighted two women advocates. I know, two, one against each other. And I will say like I had intended to, I knew the arguments were happening Monday. I was really busy with work. I was intending to just maybe keep it on the background or listen later. And I was just totally gripped at hearing these two brilliant women argue. My daughter, Sydney, came into my office during it. And I had this moment with her where she was sitting on my lap. And I was like, Sydney, listen, there are women arguing, both women arguing. And it was just this really moving moment. And what I love the most is that I feel like sometimes we

hear people talk about women advocates and the style of women advocates. And Erica Ross and Lisa Blatt could not be more different. Both effective. But like Erica Ross presents argument in a systematic, super thorough way in which it sounds like she is presenting oral argument that just happens to be by phone. And Lisa Blatt is brilliant as well. But she sounds like she's more irreverent, she's more informal, she uses analogy and logic in a really critical way. She sounded like she was talking to the justices by phone, and it just happened to be an oral argument.

So I thought that was really interesting. I think you also got a sense from Lisa Blatt's presentation that she's a repeat player. They're familiar to her. She's familiar to them. I think at one point she sort of chided Justice Gorsuch about reading one of the filings. And it was just like, I was sort of like, well, wow, like we're going there. So, I mean, there was a kind of comfort level and familiarity that I think you just don't get unless you are a repeat player, which not many of these women are because most of the bar is men and most of the repeat players are men. She's one of the few that isn't. Yep. And so, I mean, it was cool to hear first groundbreaking live streamed argument and two women just absolutely killing it in their own different styles.

Do you want to talk a little bit about that case? Yeah, let's talk a little bit about it. So this is a trademark case. It's about whether a business can register a trademark that combines a generic term with.com. So here it was booking.com. And I'll say kind of as general background, businesses fight really hard to prevent their products from being used in a generic way. So Kimberly- Kimberly Clark doesn't want you to use Kleenex when what you really mean is facial tissue. And Johnson & Johnson... What I really mean is Kleenex, Kimberly Clark. Well, so no, they don't like that because you can't...

That's just a sale. You cannot, generally speaking, you cannot register a trademark of a generic term. But the Lanham Act, which is the act that governs registration of trademarks, it allows the registration of terms that maybe once were kind of more generic or just descriptive, as long as the public has come to understand them as trademarks rather than just descriptive terms. So here, Booking.com is a travel booking website, and it tried to register its name as a trademark. It was denied.

And what the PTO was relying on is this 1888 Supreme Court case called Goodyear's India Rubber Glove versus Goodyear Rubber Company. And it basically held that a generic term plus the word company cannot be registered as a trademark. And so the PTO says Booking.com is just the equivalent of booking company. Booking.com says, nope, that is wrong. The Lanham Act was not passed until 1948, 60 years after that old Supreme Court case. And the Lanham Act basically overrode common law. What the Lanham Act does is it makes the consumer the king. The question is not whether there's a per se bar on generic versus not generic term. The question is whether consumers believe that the mark as a whole is primarily associated with a particular company or whether the public as a whole kind of generally thinks of that mark as just a generic name for a class of goods or services. So Booking.com's brief also, it's pretty fun,

it points to hundreds of trademark registrations that the PTO has granted that Booking says undermines the per se rule. So it granted things like the container store and weather.com and cooking.com, all things that Booking.com says, listen, if you allowed those, why is Booking.com a bridge too far?

As we mentioned, you know, this case showcased Erica Ross arguing for the SG's office and Lisa Blatt arguing for Booking.com. And I will say, you know, Lisa did a pretty good job at trolling her opponent in this case. Touching on this Cheesecake Factory example, one thing the government had argued is, what are you talking about? Allowing the registration of Cheesecake Factory as a trademark doesn't undermine our position at all. That's not a generic term. Cheesecake Factory is a restaurant. It's not like literally a factory where cheesecake is made. And so Lisa Blatt said, fine, put Cheesecake Factory aside. But I still think the government doesn't apply its own generic per se rule consistently. And so here is a fun excerpt from that. I just want to say one thing about the government's

making fun of the Cheesecake Factory. Crab House is not a literal house where crabs live. They're actually dead and you eat them. And the government thought Crab House was generic. When Lisa said they're actually dead and you eat them, I kind of died a little bit. So I will say that Erica Ross managed to get in some good digs as well. So she pointed out in her rebuttal that the Supreme Court just last week issued a decision in Romag Fasteners v. Fossil that recognized that the Lanham Act preserves some common law, but it didn't get rid of everything. So here's her discussing that. Just a couple of weeks ago in Romag, this court, nine justices looked to the common law to determine what the Lanham Act preserved. And I think the same should be true here. And the thing that I thought was notable and kind of

high level trolling from Erica Ross was that the Romag case was argued and won by none other than Lisa Blatt. Yes. It was great age-rolling, for sure. So it's kind of like you live by the sword, you die by the sword. Yeah, and then Erica Ross goes back to her office and strokes a hairless cat for half an hour. I was just like, whoa. But that was sort of super insider baseball that Lisa Blatt

and the justices would know, but the rest of us wouldn't, unless you were following it or unless you listened to Strict Scrutiny, where we talked about Romag twice, I think, in two past episodes. Yep. So I think in general, there were some indications from the argument that the justices wanted some middle ground. Like, maybe we don't have a per se rule, but maybe we don't have this super amorphous test either. And can you give us some middle ground? And both of the advocates were basically like, nope, they didn't really offer much. So we'll see what happens. So Melissa, you have the second really, really big case from this week. Well, Jamie, you would never really know that

it was a really, really big case. Certainly you would never know it was a really, really big reproductive rights case, because I just don't think it broke through in the way that something like June Medical Services, which was a case that we heard in March about abortion, did. But these set of cases are really important reproductive rights cases, Trump versus Pennsylvania, and Little Sisters of the Poor versus Pennsylvania. So we wanted to spend a little bit of time on them. And just for those of you who've been following these cases, it is a little bit like Groundhog Day because we are, again, talking about the Affordable Care Act's contraceptive mandate. So a little context might be in order.

The Affordable Care Act sought to equalize preventative health care coverage for women and men by requiring employers to include free contraceptive coverage in their plans. And critically, there's an amendment to the mandate that automatically exempt houses of worships like churches and synagogues, but not religiously affiliated universities, charities, and hospitals, which employed millions of people who wanted access to birth control. And for those religiously affiliated entities, the Obama administration offered an accommodation option. So for those religious affiliated entities, you could administration offered an accommodation option. So for those religious affiliated entities, you could opt out of the birth control requirement if they registered

their objections about providing birth control coverage with their insurers, and then the insurers could provide the birth control benefits directly to the employee, thereby accommodating the employer's religious objections while also guaranteeing, quote unquote, seamless coverage of birth control for the employees. We had a case in 2014, Hobby Lobby, where a closely held corporation, a private corporation, challenged the Affordable Care Act's contraceptive mandate on the ground that it had religious objections and that under the Religious Freedom and Restoration Act, it shouldn't be required to provide birth control to its employees and that it should get an accommodation in the same way that these religiously affiliated entities should.

And the court, in an opinion written by Justice Alito, agreed with that, that RFRA demanded that the employer also have an option to be accommodated. The employer's religious objection should be accommodated as well. In a similar case that came up in 2016, the accommodation process was again back in the hot seat. And some of the religiously affiliated entities that were subject to the accommodation process objected to it on the ground that simply alerting the insurers that they had these religious objections and allowing the insurers to provide the birth controlled coverage to their employees actually made them, quote unquote, complicit in an act that was inconsistent with their religious beliefs.

All they had to do was literally fill out a form that said, I have a religious objection. Form 700. Fill out a form. Yes. And then give it to the insurer. And then the insurer would not charge them anything. They wouldn't have, they weren't on the hook and the insurer would provide it directly. And that wasn't good enough because it would facilitate the provision of birth control indirectly. And so the religiously affiliated employers were basically saying, like, we don't want to provide this

coverage at all. Any kind of accommodation necessarily makes us complicit in an act that our religion views as sinful. So we're not actually interested in accommodation. We want an exemption from the law entirely. And so this was sort of the issue in 2016 in a nutshell. And the court at that time, this is sort of that interregnum where Justice Scalia had passed away and there was not yet a replacement for him. So I imagine they split four to four on this, but they sent this back to the lower courts to just work out a compromise position. Come on, work it out, guys. Work it out. Work it out. We can work it out. Well, they tried. And so this is sort of the residue of that. In the meantime, of course, the 2016 election happens.

The Obama administration files out. The Trump administration is ushered in. And when they come in, the Trump administration expands the rules for a religious accommodation. So in the past, you just had to sort of show that you had religious objections to the provision of the contraceptive care, and then you could be part of this accommodation process. They actually expanded it to not only allow for religious objections, but also moral objections. So this sort of sweeps quite broadly anyone with any kind of moral objections. And a real question is, do the moral

objections actually fall within the scope of the Religious Freedom and Restoration Act? Which is about religion. It's not about morality. Which is about religion. There's also this sort of ancillary question that becomes very important. When the Trump administration changes those rules, they don't actually go through the ordinary notice and comment process that is required for a rulemaking change. And so a question emerges about whether or not they have complied with the terms of the Administrative Procedure Act. So there's a case filed, a district court enjoins the Trump rules in a nationwide injunction that will become relevant in a little bit. And the administration

challenges it. The Little Sisters of the Poor, which is a religious order that provides help to indigent persons, they had previously challenged the accommodation workaround. They intervene on the side of the Trump administration. So there are four big issues here. One, does the Trump administration violate the Administrative Procedure Act because they promulgated the new rules without observing the notice and comment period? Two, does Pennsylvania, which challenged the Trump administration, have standing to bring the suit against the administration on behalf of the affected

employees? So a sort of standing question. Three, can the lower courts issue a nationwide injunction barring implementation of these rules in every jurisdiction? And this has been an ongoing question since the travel ban. It's repeatedly come up during the course of the Trump administration, whether the courts go too far in issuing nationwide injunctions. So this is relevant. And then finally, did the administration have statutory authority to entirely exempt from the contraceptive mandate employees or employers with religious or moral objections, or did that run afoul or go beyond the scope of RFRA? So there's a lot here. There's a ton here, which is why, as we'll discuss, the argument went

on very, very long, much longer than it would have. Over 49 extra minutes. It's only slated for an hour, and it went for an hour and 49. Yeah. And this last question presented is really the kind of meat of the case when we think of the kind of juicy merit stuff. And I just wanted to hone in on that just for a second. So agencies can't just promulgate regulations whenever they think there's something interesting they want to do. They have to have statutory authority for it. And so here, the government and the Little Sisters pointed to two sources of statutory authority that would allow them to create these exemptions. Number one, the ACA itself. And number two, the RFRA, which you talked about.

So the government says that the ACA itself gives the administration the authority to do so. It delegates authority to a federal agency to promulgate regulations about required preventive coverage, what type of preventive coverage must be covered under the ACA. And the government says that authority allowed them to create these exemptions. The challengers say that's totally wrong. The ACA gives the authority to the agency to decide what services may be covered, but not who need not or should cover them. And then on the RFRA point, as you mentioned, I think before, the RFRA generally bars the government from imposing a substantial burden on the exercise of religion without satisfying strict scrutiny. So the

government and the Little Sisters say the exemption is required or at least authorized by RFRA because otherwise the ACA will substantially burden their religious rights. The challengers say this is the wrong reading of RFRA. RFRA doesn't create any affirmative rulemaking authority. So the only way RFRA helps you is if it would actually violate RFRA to not have a total exemption. And they say that clearly can't be the case because the previous accommodation process that was put in place would have satisfied RFRA. So you can't then go beyond what RFRA would actually require. So how did the argument go, Melissa?

Well, so first of all, this was not like Booking.com where you had two really excellent female advocates on either side. We had three very excellent, very male advocates on both sides. So thanks, fellas. Arguing for the future of contraceptive coverage for women. Yeah, like let that settle in on your uterus for a while. So, you know, okay. There are three men arguing, Noel Francisco for the government, Paul Clement for the Little Sisters of the Poor, and Michael Fisher on behalf

of the states. And you noted, I saw on Twitter, that Paul Clement kept making a sort of offhanded comment that has a very sort of gendered kind of provenance. I wanted you to talk about this. I hadn't heard it, so I thought this was really interesting. One of the anomalies here is that the government from the beginning has exempted religious orders, but they refuse if they stick to their knitting and do only religious services. He basically repeatedly made the point that that kind of people have to stick within their lanes in order to stay in your lane was what he was trying to say. Stay in your lane. But instead instead he chose this sticking to your knitting thing. Stick to your knitting.

It is this kind of term that is used to basically tell women to stay in their place and to kind of diminish the things that they do. It's only used in my experience when referring to women. And it's really grating. It was grating on me. He used it at least two times. He's also used it once before in argument also to refer to religiously affiliated employers and I think to nuns.

And I just found that, I mean, I was already a little bit annoyed that we had three men arguing for the future of contraceptive coverage. And then the sticking to your knitting kind of annoyed me. Well, I wonder if the sticking to your knitting also annoyed Justice Ginsburg, who chimed in from her hospital bed at Johns Hopkins and didn't really ask any questions at all, but instead just sort of had some things to say. And so here's a clip of Justice Ginsburg basically not questioning, but questioning Paul Clement. I would ask Mr. Clement the same question I asked the government. At the end of the day, the government is throwing to the wind the women's entitlement to seamless, no cost to them. It is requiring those women to pay for contraceptive services.

If they can, first they would have to go search for a government plan. And if it turns out, as it will for many of them, that there is no other plan that covers them, then they're not covered. And the only way they can get these contraceptive services is to pay for them out of pocket, precisely what Congress did not want to happen in the Affordable Care Act. So this idea that the balance has to be all for the little sister type organizations and not at all for the women, it just seems to me to rub it against what is our history of accommodation, of tolerance, of respect for divergent views. This followed an almost identical kind of non-question, soliloquy, yeah, not colloquy, soliloquy that she provided to Noel Francisco. I mean, I basically interpreted her to be saying,

are we seriously fucking doing this in 2020? Like, are we seriously doing this still? I'm going to lay a scene for you. This is what I imagined how this all went down, right? So take yourself to a hospital room, a private suite at Johns Hopkins. Justice Ginsburg is in the bed. It's like the back is elevated. She's got all of her papers around her. She's got one of those bed trays in front of her. She's got her phone

and she's wearing like a beautiful silk dressing gown, like the kind that you would wear in a hospital to preserve modesty and whatnot. But it's silk and it's gorgeous, whatever. And she's in this dressing gown and she's essentially dressing them down, right? It is a dressing gown dressing down. And she's just sort of like, what are you talking about? She goes on. She uses almost all of her time to the point where Chief Justice Roberts is like, would you like to respond, Mr. Francisco? And he's like, maybe.

I don't know. And then he doesn't give a very good answer because it wasn't actually a question. It was a statement. She was just sort of like, you've thrown these women to the winds. The ACA purposely provided for this coverage in the interest of gender equality and the provision of healthcare services. And now you are letting the employer's religious objections predominate when in fact the process of accommodation is about balancing the interests on both sides. And when she questioned, air quotes around questioned, the challengers, so Michael Fisher, her question was basically, well, I think you should win,

and this whole thing is ridiculous. Like, I'm sorry you have to be here. Right. And he was like, well, yes, yes, I agree, Your Honor. So I'm sorry both of us have to be here. I'm sorry I had to zoom in from my hospital bed to make this point. But here we are. I will say I don't find that particular form of questioning particularly effective, but I think she was frustrated. She was kind of many of us frustrated. And I think she knew that they weren't going to provide any answers that were useful anyway. So she just wanted to get out her thoughts. So I definitely, this was not the usual order of business for her. She's usually a very incisive questioner. She was mad. I think she was really mad that here in the year of our Lord 2020, we are having this conversation about whether an employer and the employer's religious views can

actually predominate across an entire workforce, which might be secular and which might have very different religious views that require or demand a different kind of outcome. And so in her view, this is not what accommodation looks like. And she was clearly very annoyed that we were back here again some more. Another justice who kind of zoomed in, who also had very strong feelings about these questions, but on the other side was Justice Alito, who has been a very stalwart defender of religious freedom. And he was all in for the religious employers here to the point where he actually questioned the lower court, the Third Circuit, about whether or not they understood and had referenced or read Hobby Lobby,

a case that he wrote. So here is Justice Alito asking questions of the lower courts. If I could ask one other question, explain to me why the Third Circuit's analysis of the question of substantial burden is not squarely inconsistent with our reasoning in Hobby Lobby. In Hobby Lobby, we tell that if a person sincerely believes that it is immoral to perform an act that has the effect of enabling another person to commit an immoral act, a federal court does not have the right to say that this person is wrong on the question of moral complicity. That's precisely the situation here. Like, Hobby Lobby wasn't about this.

It was about whether a private entity that is not, like, actually a church could be included within the protections of RFRA. It was not about whether their religious practices should completely overcome everything else. Or more particularly, in Hobby Lobby, both Conestoga Wood and Hobby Lobby were seeking eligibility for the accommodation process. They wanted an accommodation. They did not want an exemption, or at least they didn't ask for an exemption at that point. They wanted to be included in the accommodation process, which is what the Hobby Lobby decision gave them. The Hobby Lobby decision said that their needs had to be accommodated, not that their objections allowed them to be entirely exempt from a law that is otherwise neutral on its face. Yes, I agree.

Justice Alito does not. Justice Alito does not agree. It was really interesting. And they were in relatively close proximity, her non-question and then his invocation of Hobby Lobby. I thought another really important and incisive line of questioning came from Justice Sotomayor. She jumped in to ask a really interesting and important hypothetical that implicated the current moment and COVID-19. So here she is asking her question. Mr. Clement, assume that the government tomorrow passes a law that says every insurance company must reimburse every policyholder they have for COVID-19 vaccine. They say nothing about whether it's in your policy or not. If someone has a religious objection, they say they can be exempted from it, but you, insurance carrier, must pay for anyone who submits, who has a policy

with you, for anyone who submits for a COVID-19 vaccine. Can the employer object to pay to that policy? So, Justice Sotomayor, I think the answer is no, and if I'd like to explain kind of how I work through that. Mr. Clement, exactly the same rules that apply here to contraceptives, meaning all they have to do is tell the government that they object to vaccines, and by the way, we both know there are religious objectors who object to vaccines. And that they don't want their plans to be complicit in providing vaccines.

This was a great question. Super topical, super relevant. And I don't think Paul Clement had a great answer for it, but he probably should have because this was a question I think you could have anticipated. Yeah. I mean, his answer was something along the lines of, well, it would depend and here's how you'd go through the process. And I think in that situation, maybe the employers would win, but maybe the government could satisfy strict scrutiny, which is completely bonkers. Right. So, I mean, first of all, it took him so long to get to it.

But it was like, well, obviously, the employer's religious objections to providing the vaccine would have to be weighed. But what also would have to be weighed is the government's compelling interest in not spreading a pandemic further, which surely would be viewed as compelling and would likely hold the day if that were the situation. And the question was about religious objections to vaccinations in a period of a global health crisis. And I just thought he had no good answer for it, or at least when he got to what might be a decent answer, it just took him forever. Yeah. And, you know, query why the government's strong and clearly articulated interest in ensuring preventive health coverage for women would not also satisfy strict scrutiny in that situation. Well, in Hobby Lobby, there were definitely four.

And I think you could also probably count Justice Kennedy as five for saying that that was a compelling interest. Yeah. Justice Kagan and the chief had a couple questions about whether the law sweeps too broadly. And it was mostly about the kind of, you know, what if this necessarily includes employers not just who are religious, but who actually believe that it would be complicit. And it goes beyond that. It could include anyone who might just say

I have a religious objection. Or a moral objection. Or a moral objection. And the SG, they asked Noel Francisco this, and his response was kind of funny. It was basically like, don't worry about that. Those employers won't use the exemption because the contraceptive coverage mandate doesn't cost anything extra. So it kind of sounded like the, you know, trust us situation. Well, I also thought that those questions from Justice Kagan and Chief Justice Roberts suggest that there are two very firmly entrenched camps, Alito and Ginsburg on either side. And I think Sotomayor probably lines up with Ginsburg, probably Breyer there too. And Thomas lines up with Alito and maybe Gorsuch and Kavanaugh are there. And it's really going to come down, I think, to where the Chief Justice and Justice

Kagan go. And it seemed like they were seeking some kind of middle ground here to decide this, maybe more narrowly, but just sort of like, and I think maybe the APA provides the grounds to do so. Like, you know, this is like almost like a kind of commerce department versus Ross again. Like you just did not do this the right way procedurally. And that's sort of what gets this gone. There's one last thing I wanted to flag because it goes into what we've been talking a lot about this term, which is about agency deference. So Justice Kavanaugh had this during one of his questions.

He articulated what seemed like a really broad view of agency power and agency deference. So here's that clip. Courts should construe narrow language narrowly and broad language broadly. And this seems to be broad language, as Justice Thomas noted. When you have that kind of broad language, you're going to get different executive branches who are going to exercise their discretion within that broad language and balance the interests differently. And then the question is, what's the judicial role? And it seems to me the judicial role is not to put limits on the agency discretion that Congress has not put there. And then we're left, I think, as Justice Breyer said, and I want to get your reaction to this, with the arbitrating capricious test at the end of the day

and just making sure that in exercising its discretion and balancing those interests, the agency didn't go outside the limits of reasonableness, which is a very deferential test. It's not abdication, but it's deferential. So that was super shocking to me because Justice Kavanaugh was basically put on the court to destroy agency deference, I think, like a big part of why he was put on the court. And I think it was interesting to see this broad view enunciated.

And also I thought it was fascinating to me that the government in this case affirmatively invoked Chevron, this case about agency deference, to defend the exemption. And the government all term has been conspicuously avoiding relying on Chevron. So I thought it was really curious that they did so here. Well, it's also interesting because I think Justice Gorsuch also asked a question about the non-delegation doctrine and whether the ACA actually provided enough guidance to the agency. And so, you know, thinking back to Gundy from last term where Justice Alito wrote that concurrence where he was like, this isn't the right case, but maybe there could be a better case. Like, you know, we're accepting all comers. I think it made clear that Justice Gorsuch, too know, we're accepting all comers. I think it made

clear that Justice Gorsuch, too, was ready to accept all comers on that front. So I think just sort of really different points on the agency point and just sort of the longevity or viability of the administrative state going forward. Yeah, I mean, one thing that's interesting is usually opinions all come out by the end of June. But with this delayed schedule, I wonder if it'll go through July. Because putting this opinion together in six weeks is going to be a nightmare. I mean, we're going to get like nine different opinions. It's going to be a total mess. So that was the first week.

And what a week it was. But it's not the only week. We have a second week of oral arguments, telephonic, live-streamed audio oral arguments coming at us starting on May 11th. And to paraphrase Taylor Swift, this is what you came for, right? This is the week that everyone has been waiting for with the big cases on the docket, First Amendment cases, the Trump financial records cases, and the cases regarding faithless electors. So let's jump right into it. We're going to be really brief, so we can also cover some opinions that came down, but we wanted to give you a sense of what you're going to hear over this upcoming week. So on May 11th, the Monday, we're going to get a set of cases that involve First Amendment issues. So St. James School versus Beale and Our Lady of

Guadalupe School versus Morrissey-Beru, which are a set of cases involving the scope of the ministerial exception. And the ministerial exception was recognized by the court very recently in a case called Hosanna-Tabor from 2012. And it basically says that for purposes of employment discrimination law, religious institutions have what is known as a ministerial exception, which means that they aren't subject to employment discrimination laws with regard to how they act with regard to their employees. It all, of course, turns on whether the employee, given the nature of his or her job and job functions, is a minister for purposes of the ministerial exception. And so there's been some litigation in the lower courts about how broad that ministerial exception is. And this is one of those cases. So in both of those

cases, there are teachers at Catholic elementary schools in California, and they filed suit alleging various forms of employment discrimination. And the classic schools have defended by saying the ministerial exception applies. And so the issue in both of these cases is whether a teacher or, for that matter, any non-clergy employee is a minister for purposes of the exception. And the court declined in Hosanna-Tabor to adopt a rigid formula for deciding when an employee qualifies as a minister, but these two cases will likely press the court to better articulate what the contours of this exception look like. All right. So there's another case also that I think is really interesting. So Jamie, do you want to talk a little bit about McGirt?

Yeah, this case I think is going under the radar and should not. It's a huge case. It's called McGirt versus Oklahoma. It is a case that will basically decide essentially whether half of Oklahoma is actually an Indian reservation and has been for the last 200 years and we never knew it. And one of the reasons why the case is interesting is that it's a follow on from a case from last from OT 2018 Carpenter versus Murphy in which the same issue is presented. At the time, Justice Gorsuch was recused because he had been involved in Tenth Circuit proceedings. And the court heard the case and then did not issue an opinion. And presumably the court was split 4-4. What would usually happen in that situation is the court would issue a one-sentence opinion that says the decision of the Tenth Circuit is affirmed by an equally divided court. But the court didn't do that because Oklahoma had lost

below. So if the court had issued that affirmance, then half of Oklahoma would be an Indian reservation. And so I think the court just couldn't bring itself to come to that conclusion. So they said, we're going to rehear it next term. But they didn't rehear it next term. They never scheduled it for argument. Instead, they waited until there was another case that presented exactly the same issue that Justice Gorsuch would not be recused from. And that's this case, McGirt versus Oklahoma. The one thing I'll flag about this case is that if the court is at all serious about stare decisis and the cases on which these issues turn, no one's seeking to have them overturned or anything. But if the court's kind of serious about the application of prior cases, Oklahoma probably loses. Like a straightforward application of the relevant precedent probably means Oklahoma loses. But the practical implications of that result are just astounding. It would mean probably letting

hundreds if not thousands of serious criminals out of jail. It would have probably letting hundreds, if not thousands, of serious criminals out of jail. It would have huge implications on business, on government. So it's kind of going to be one of those, can the court stomach that and kind of be methodologically true? Or will those things sway the day? So keep an eye on it. No, that's a really important case. Another case that I think people have followed because it has definitely been above the radar, it's going to be heard on May 12th, the Tuesday. And that, of course, are the three cases that are colloquially known as the Trump financial records cases.

So that's Trump versus Mazars, Trump versus Deutsche Bank, and Trump versus Vance. So let me just sort of break them out into two buckets. Trump versus Mazars and Trump versus Deutsche Bank are the two cases that involve subpoenas issued by congressional committees. The question in those cases is whether or not those subpoenas issued properly or whether they exceeded Congress's oversight authority. The president's argument in a nutshell is that allowing the subpoenas to be issued and to require the accountants and Deutsche Bank to release those financial records would be a broad expansion of congressional oversight power because it would allow Congress to seek records from a sitting president on the pretext that the

information is adjunct to an actual legislative purpose, when in fact, it's really to determine whether the president broke the law, basically transforming congressional oversight into a more general law enforcement power that Congress doesn't have. And again, sort of separation of powers concerns there. The president also argues that Congress doesn't have the authority to legislate in the areas that the subpoenas covered. Specifically, he argues that the Constitution, not Congress, created the office of the president, which means that Congress lacks the legislative power to dictate to the president on these matters or to expand or alter his qualifications or otherwise interfere with his ability to exercise his duty. Again, really important arguments there.

The government's argument or Congress's arguments on the other side are basically like, this is all part of our oversight authority. It's well within Congress's oversight authority. The bar for issuing subpoenas is low and the court should enforce them as long as there is any, quote unquote, valid legislative purpose, which is to say they can seek information that will inform Congress on a subject on which legislation could be had. So Congress is viewing this quite broadly. The president wants to narrow it because any broadening of Congress's authority he views as an encroachment on executive authority here. So those two are really important. The Trump versus Vance case presents a similar, though somewhat distinct issue. So Trump versus Vance arises from a state-level criminal investigation of the Trump organization. New York City's district attorney or the Manhattan district attorney Cyrus Vance issued a grand jury subpoena to Mazars, the Trump accountants,

seeking the president's tax returns and other financial documents relating to the Trump family and the Trump organization. The president went to federal district court in New York and argued that the subpoena couldn't be enforced while the president was in office. And the district courts dismissed the case on the ground that younger abstention principles, which hold that federal courts should decline to be involved in state criminal prosecutions, prevented federal court involvement here. But on appeal, the U.S. Court of Appeals for the Second Circuit concluded that younger abstention didn't apply here, but it nonetheless agreed with the district court that the subpoena could be enforced because presidential immunity doesn't bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject of the investigation is the president. The president

argues that allowing the subpoenas to go forward and to have the information disclosed would be unprecedented. It would be involving the president and his personal financial information in an ongoing criminal investigation that might impede his ability to do his duties and certainly at a minimum would basically lower his esteem in the standing of world leaders because they would all know that he was subject to a criminal investigation. And then finally, that... Wait, wait, I have to add one thing here because he also argues that allowing him to be investigated would distract him, which I feel like for this particular president, the distraction rationale seems a little bit comical. But I think the better argument that he also made was that

there's a likelihood that this is successful. State and local prosecutors could then sort of use their prosecutorial powers to harass a president with whom they did not agree. And that might be true. But just the distraction piece would kill me. I mean, this is a president with whom they did not agree. And that might be true, but just the distraction piece. I mean, this is a president who's distracted by Fox News. Like this is, if nothing, everything is going to distract him and this is of no moment. The DA's argument is basically that the president is not a king, right?

I mean, if there is a criminal investigation and the president is involved, then surely the administration of the criminal justice system requires that the president participate by having these records disclosed. And that, as they said in Clinton versus Jones, there are workarounds that can be used to alleviate the pressures on the president or the distractions that might flow from a criminal investigation. So the DA is not having this. Yeah, if the president's not immune from civil discovery, like a criminal subpoena is just criminal discovery. So it seems like under those principles, it would be difficult. And one thing I'll be curious to see in these cases is if the justices take different views about the different cases, because I could see that

happening. I think they were trying to take different views about the different cases, because I could see that happening. I think they were trying to take different views about the different cases, because last week they actually issued a request for supplemental briefing in Trump versus Mazars and Trump versus Deutsche Bank, the two cases involving the congressional subpoenas. And the supplemental briefing was essentially to have the parties brief whether or not the political question doctrine applied. And as we discussed in our last episode, which is something no one, no one raised, none of the parties raised, but the political question doctrine basically says that a case is non-justiciable if it has actually been committed to the political branches, i.e. Congress and the president for resolution and is not properly the subject branches, i.e. Congress and the president, for resolution and is not properly the

subject of judicial resolution. And so neither of the parties had argued this, but the court asked for supplemental briefing on this. And I speculated last week that they were trying to build an off-ramp for themselves, an exit ramp, where they didn't actually have to wade in and decide this case on the merits, but could just dispose of it on justiciability issues. But interestingly, when those letter briefs were filed on Friday the 8th, it turned out that neither of the parties thought it was a political question. So they both want the court to decide this on the merits. So if the court was trying to build an off-ramp, the litigants are not assisting in the construction of said off-ramp. Interesting. The last case that's going to be heard next week is,

and I'm just going to mention it because we've talked about it a lot, the faithless electors cases, which is about whether state laws that seek to control the way presidential electors vote violate the Constitution. So that one is going to be one to watch. And we should mention that I think Leah and Kate are going to be recapping those arguments next week. So stay tuned. So we have opinions and we have some big ones. We've been getting these kind of like little opinions and trickling in, but we've gotten some big ones in.

And they're both from cases we've talked about before. And we have talked about these cases together before, speculating that maybe the resolution would be the same for both. So why don't you talk about United States versus Kelly, aka Bridgegate? Bridgegate, also known as the Jersey Shore case. So we've covered this case ad nauseum because it just never gets old. It's so good. In 2013, Bridget Kelly and Bill Brony, who were members of then New Jersey Governor Chris Christie's staff, altered the traffic pattern on the George Washington Bridge in an effort to punish the mayor of nearby Fort Lee for failing to support Christie's

re-election bid. The change in the traffic pattern resulted in four days of gridlock on the streets surrounding Fort Lee and before the original pattern was eventually restored. There was a lawsuit, a criminal investigation. Kelly and Barone were found guilty of violating federal statutes prohibiting wire fraud and fraud from federally funded programs, and therein was the problem. In a unanimous decision written by Justice Elena Kagan, the court overturned those convictions, ruling that although the officials' actions were, quote unquote, an abuse of power, they did not actually violate the federal fraud laws in question because the scheme did not aim to obtain money or property. And so in this opinion,

Kagan emphasized that under the terms of the relevant statutes, the government had to show not only that they had engaged in the deception, Barone and Kelly, but that they the terms of the relevant statutes, the government had to show not only that they had engaged in the deception, Barone and Kelly, but that they did so for the purpose of obtaining property. And the government tried to get around this requirement in the statute by arguing that Barone and Kelly's scheme was intended to obtain the Port Authority's money or property because they sought to take over lanes on the bridge and because the court authority had to pay the traffic engineers and the toll collector as a result. But the court found that this was a really strained reading of the statutory language. We also acknowledge it was

a strained reading of the statutory language. And the court said that while this whole scheme was an egregious misuse of government authority and resources, it wasn't actually a crime, at least not under the terms of these statutes. And so the court seemed especially concerned here that upholding these convictions and crediting the government's arguments here, however strained, would allow the government to use the criminal law to enforce its own view of integrity and broad swaths of state and local policymaking. And while Barone and Kelly's actions were corrupt and a misuse of authority, quote unquote, not every corrupt act by state or local officials is a federal crime.

So we've talked about this. I think the court just made it just a lot easier for a white collar crime to happen, right? It's like government corruption graft. I think that the court said we're not going to make a federal case out of Jersey being Jersey. Or maybe like the more generous reading is that this is an invitation to Congress to actually write statutes that would specifically criminalize the kind of political corruption or graft that was encompassed here. But they kind of were just like, you can't use those statutes for this. So which makes it hard to prosecute it. I think Congress tried to do that in the honest services context. And the court said, you know, so I think that they can. I think that what the court says here is basically states can deal with the situation if they want to. But this is a state

issue and we're not going to make a federal case out of it. Out of government corruption or graft. Yeah. State level government corruption, I think. Like states can handle it, but this is not a matter for Congress. We're not going to. Senning Smith, I think, raised similar kinds of issues, although not necessarily in the context of white-collar crime. So same outcome, Jamie? So, well, we thought that that might be the case. So this Senanning-Smith is the case about whether a federal statute that prohibits individuals from encouraging someone to enter or reside in the United States illegally violates the First Amendment under the overbreadth doctrine. And we thought that a reversal in Kelly could mean victory for Senator Smith, because in both cases,

the government was relying on this, trust us, we won't go overboard in prosecuting these cases rationale. And so when Kelly came out, I thought, oh, this is great. Senator Smith's going to come out, you know, come out again, it'll be the same way. Well, to say time out, not all of us believed that a reversal in Kelly would lead to a victory in Sonneneng Smith. Some of us were the turd in the punch bowl who were like, they're not like, yes, it's two different sets of things. And prosecutorial discretion in one area was going to be fine, even though it was not fine somewhere else.

Right. So you're right. I was more optimistic. I definitely did not predict the outcome here. The Supreme Court in Synoning Smith did not even get to the merits. Instead, the court vacated the Ninth Circuit's opinion because the court did not like the way the Ninth Circuit decided the case. So in the Ninth Circuit, Synoning Smith was represented by different counsel and did not initially argue this overbreath argument. And so after the oral argument in that case, the Ninth Circuit asked three organizations to brief as a meekie this overbreath question that they had flagged. And it invited the parties to respond to those amicus briefs. And then it re-had oral argument, and then it ruled on this over-breath ground. So what the Supreme Court said is that this procedure, quote, departed so drastically

from the principle of party representation as to constitute an abuse of discretion, end quote. And the court remanded for the Court of Appeals to adjudicate the case shaped by the parties rather than the case designed by the Ninth Circuit. And let me say a few things on this. The first is that this opinion is itself hypocritical on its face because the Supreme Court did exactly what it held was an abuse of discretion for the Ninth Circuit to do. Neither party argued for vacature on this basis.

The abuse of discretion issue, those terms don't even appear in the government's brief. This was not a question presented. It wasn't discussed at oral argument. The government never offered this as a ground for reversal. And instead, the government teed this case up as one about statutory interpretation

and the First Amendment. And there's literally, I just want to flag this paragraph that's in the brief. This paragraph says, and it actually appears in the opinion, courts are essentially passive instruments of government.

They do not or should not sally forth each day looking for wrongs to right. They wait for cases to come to them. And when cases arise, courts normally decide only questions presented by the parties. But that's exactly what the court did.

They sallied forth the day this opinion was issued and looked for a wrong to write. And that wrong was the Ninth Circuit doing the exact same thing that the court here did. And one other thing I have to add, and I'm sorry, but I'm very heated about this. This is exactly what the Supreme Court did in Citizens United. Sallied forth. Exactly. It had Court did in Citizens United. Sally Forth. Exactly. It had oral argument in Citizens United. And then after oral argument, it asked for supplemental briefing on a new issue that hadn't been raised by the parties. It asked for new amicus briefs.

It asked for new party briefs. It held a new oral argument. And then it decided on that new ground that it had raised. And in the Ninth Circuit's opinion in Senator Nick Smith, the Ninth Circuit cited Citizens United as giving them authority to do this. And the Supreme Court's opinion doesn't even mention that case. Well, I'm not going to say I told you so, but I did tell you so. I also predicted that the toilet flush would happen. I knew something was going to happen in any event. And we should mention that this was a Ginsburg opinion.

And so, you know, for those who think that we always will side with Ginsburg, at least I will not. We are equal opportunity destroyers. The court also decided Romag Fasteners, Inc. versus Fossil in a unanimous opinion written by Justice Gorsuch, where the court held that a plaintiff in a trademark infringement suit is not required to show that a defendant willfully infringed the plaintiff's trademark as a precondition to an award of profits. And so the judgment was vacated there and remanded to the

lower courts. We also got an opinion in Babb v. Wilkie. So Babb v. Wilkie was that age discrimination in employment case that we talked about at length. And I think we also discussed it in conjunction with the Comcast case, the Comcast and Byron Allen case. But here we got an eight to one opinion written by Alito in which the court held that the plain meaning of the federal sector provision of the Age Discrimination and Employment Act demands that personnel actions be untainted by any consideration of age, but that the plaintiff need not establish that age was the but-for cause of the employer's action. So I should just own up to the fact that I thought this case was going to come out the other way because of the way Comcast came out. I thought Comcast was sort of the death knell for Norris Babb's case here, but that wasn't

what happened. The court concluded that- Yeah, Comcast was basically like, Comcast was basically like, but for, but for, but for is the default. We love but for, it's always going to be but for. Right. Here they said that the federal sector provision only requires that employment decisions not be tainted by consideration of age. It doesn't have to be but for age, but they do say that butfor causation might nonetheless be important for determining the appropriate remedies. So damages and whatnot, but-for causation might be a factor there. And Justice Sotomayor filed a concurring opinion in which Justice Ginsburg joined. And Justice Thomas was the lone dissenter, writing that the majority's opinion does serious

damage to our interpretation of anti-discrimination statutes, for which I think he can only mean that, did you not see Comcast? We just said that but-for causation was sort of the hallmark of causation for these federal anti-discrimination statutes. And he observed that the majority's opinion put the federal sector ADEA provision out of step with other federal employment discrimination statutes, which have this but-for-cause requirement. So again, I got this wrong. I have to say that I found Justice Thomas's dissent actually really fascinating, and I found myself agreeing with some pieces of it doctrinally. Like one thing he says is you're creating, you're saying that it's not but-for-causation, but maybe you have to have but-for- for causation for particular remedies and not others.

That sounds a whole lot like lawmaking. And if Congress wanted to have it interpreted different ways for different remedies, it would have done that, which is, I feel like, a fairly compelling argument. programs that are explicitly predicated on the notion that we want to advance diversity and inclusion and we encourage particular people to apply or to be promoted and we're encouraging agency heads to have diversity in mind this puts all of that at risk and you could you could see a whole bunch of you know um anti-affirmative action type of complaints brought by public sector employees i think that's a little bit like slippery slope, you know, doomsday stuff. But it's an interesting doctrinal, I feel like, argument to make. Also a little convenient given Justice Thomas's views about affirmative action in other contexts. Yes.

So lots of opinions, lots to talk about. We are definitely over time now. So we are going to do our last court culture segment super quickly. And Jamie, you wanted to highlight a court access project that's been going on at SCOTUSblog. So why don been leading a team of people to take a deep dive into the access the public has to its Supreme Court. And so every morning, I've been to probably a dozen arguments this year. Every morning, I'll see her outside standing, talking to people about their experiences. She's delved into the question of line standing and, you know, how that process works, how the Supreme Court bar line process works. And they have about a dozen articles right now up at SCOTUSblog that I definitely think are worth checking out. They're fascinating, really, really good work. And so I wanted to flag that.

The other thing we wanted to flag is sort of summertime is when the justices go on these, I don't want to call them boondoggles, but they kind of are a bit boondoggly. Like they go abroad, they teach courses at foreign universities and whatnot. But that's obviously not happening. Like who's, no one's getting on a plane right now, or at least not the justices. So what are they going to do this summer? What's how I spent my summer SCOTUS style going to look like, Jamie? I mean, Justice Ginsburg is going to write stuff. She's going to work because that's what she knows how to do. And she's going to maybe listen to some opera. But I think she's going to work. Maybe she'll write a book. Maybe she'll write some advanced opinions for next year,

really get ahead of things. I think they're going to be working on this term. First of all, think about what you just said when we were talking about the Little Sisters of the Poor. Like, that opinion is going to be so complicated to draft. Like, it's not going to be done in six weeks. I mean, like, the court is usually done with their work by the end of June and then they're out. But, you know, with no pressure to be in, you know, Madrid or Florence, what's to stop them? Like this could go till Labor Day. Oh my gosh, it totally could. We could have a 400 page long little sister's opinion without a problem. Like it would be easy. I mean, like this could truly be a quarantine term. Like I

feel like quarantine, like the days are endless and they just like look like each other. And maybe it's like that for them too. The opinions are endless. They look like each other. I think that Justice Breyer is going to work on his pot roast recipe. I'm going to try and work on that. I've been baking a lot, but I've got to try that pot roast recipe. But anyway, we wish them well. We hope they're all staying safe and enjoying their time at home as best they can. I think it's hard for some of them to just be sort of out of the action. I think they like seeing each other, but this is what they need to do to stay safe. So as we wind down things this episode, we just wanted to reiterate how grateful we are for our producer, Melody Rowell, and Eddie Cooper for our music. And for all of you listeners, we wanted to highlight

one listener and give a big strict scrutiny shout out to Clara from Knoxville, who has been listening to the show while at home sheltering in place. And Clara has developed a huge interest in civil rights law, and she is only in the fourth grade. We should also highlight Joseph Matthews, who apparently uses strict scrutiny to put his very adorable baby to sleep. So apparently our voices have a soothing his very adorable baby to sleep. So apparently our voices have a soothing quality that his baby likes, but often it puts his baby to sleep. And so we're happy to help in whatever way we can. So thank you all for listening. We love it. We want to thank those of you who not just listen, but actually support the pod by subscribing to us through our Glow campaign. So if you're a Strict Scrutiny super fan, and you'd like to help us to pay

Melody a living wage for all of the great work that she does producing the show, check out our Glow campaign at glow.fm forward slash strict scrutiny. And this week we will be hosting our first ever, but not our last, Strict Scrutiny Happy Hour, an SSHH, for Glow subscribers. And we've got more subscriber-specific opportunities coming down the pike. So when you subscribe, you're not just helping us to keep the pod going and to pay Melody. You're getting some pretty sweet benefits that you can't get from listening alone. So please think about it. And if subscribing is not your thing, we get that too. But you can also support the pod by upgrading your work from home wardrobe with our strict scrutiny merch.

So we have sweatshirts, super soft tees, baby onesies, all the things you need to treat yourself on this quarantine. So get there, get at it. Absolutely. I just treated myself this week and I have this super cute new pink strict scrutiny t-shirt that I wore to do my little Peloton ride before the show. And not only do you have a Peloton glow, you have a strict scrutiny glow up, which is the best kind of glow up to have. Absolutely. All right. Well, everyone

stay safe out there and we will talk to you next time. I see you later.