Strict Scrutiny - Get to the Punchline

Episode Date: March 8, 2021

Leah and Kate recap some February arguments (Brnovich v. DNC and United States v. Arthrex) before pleading with the Biden administration to give them some court culture material. Oh, and, Justice Breyer they have a request for you -- with respect, of course. Follow us on Instagram, Twitter, Threads, and Bluesky

They're all kind of acknowledging just how good she is at this. It doesn't mean she's going to win them over. But as to oral argument, she really just kind of is in her own category. Yeah, but she will make it more humiliating for them, you know, when they ultimately vote for this position that she has just utterly demolished within the span of 60 seconds. 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, your podcast about the Supreme Court and the legal culture

that surrounds it. We're your hosts today. I'm Kate Shaw. I'm Leah Littman. And Melissa sends regrets. She is right now recording an exciting conversation with Congresswoman Katie Porter. We're going to make that conversation available on our feed as a special podcast episode down the road. So stay tuned for that in your feed. So today, we're going to do a little bit of court news. There's not a ton. We'll then move on to oral argument recaps, a couple of cases in depth, and then highlights from some notable exchanges in other arguments, move on to opinion recaps, and a little bit of court culture at the end. So the court has continued to sit on the abortion case. A lot of people have been watching. This is the challenge to Mississippi's ban on abortions after 15 weeks, which the state of Mississippi

asked the court to hear right after Justice Barrett's confirmation in October. The case obviously represents a rather direct frontal attack on the constitutional right to an abortion, and it was listed for conference again today on Friday, the day we're recording. We'll see if they take it. It's just unclear if they have the votes to take it at this point, or if someone is writing a dissent from a denial of cert or what exactly is happening here. I always like I'm a little skeptical when people say, you know, obviously, the justices act in political ways all the time. We talk about this constantly. But do they really worry so much about the timing of their cert grants in a way some people think they do? I'm a little skeptical. But here I don't I think they have the votes probably to take this case. And so I don't actually have a good explanation for why it is taking so long. I honestly don't know what is happening. I also kind of think there are the votes. It's possible that a fourth vote doesn't want to do this now. But right. So back to the really

political explanation, like sort of let the kind of fur over the kind of very late nomination and confirmation die down a bit and then take it like at the end of the term when people are sort of starting to tune out the Supreme Court. I don't I really don't know. Like that, you know, is obviously very political decision making, but it seems possible. And if it's true that one of the four justices who we think, you know, are potential votes to grant is in fact considering this, that itself would be pretty telling because, of course, these are also the four justices who oftentimes throw shade and make explicit accusations about the chief doing something untoward when the chief justice kind of trims his sails and adopts rulings or reaches outcomes that they think are because of these kind of political considerations. But we'll see.

Yeah. Yeah. I mean, and maybe we'll actually find out they're going to take the case now. So that's possible. Either way, they've sat on it for a really surprisingly long time. Or they're just going to stay the ruling and let Mississippi enforce its law per the shadow docket, as we were hypothesizing on a previous episode. I mean, literally just like ending with, you know, whimper, not a bang. Maybe that's how they want to do it and hope nobody notices. All right, well, we will see. One other development that the court dismissed at the request of the Biden Justice Department, three challenges to the Trump administration's sanctuary cities policy, which Biden is obviously ending. So we saw that dismissal yesterday.

And that was the policy that withheld federal funds from jurisdictions that refused to cooperate with certain federal immigration enforcement priorities. All right. So let's move on to some argument recaps. So we've talked about this case before, Lange v. California, but we didn't have a chance to highlight one particular exchange at argument, which we wanted to do. So Lange v. California is the case about the hot pursuit or exigent circumstances doctrine. Generally, the Fourth Amendment requires police officers to get a warrant before they enter someone's home. But there is an exception that allows the police officer to enter someone's home if they are doing so under exigent circumstances and while in hot pursuit. And so the question here is whether the police officer could enter Mr. Lange's home because he saw Mr. L Lang commit a misdemeanor, failure to pull over when the officer turned on his overhead lights, or because he was supposedly violating a noise ordinance against playing loud music. And so it's whether, you know, the officer was in hot pursuit of him after that.

At argument, it wasn't at all clear, as we noted on the last episode, what the justices were going to do, that is whether they were going to adopt some bright line rule between felonies and misdemeanors, which the justices didn't seem particularly interested in, whether they were going to adopt some bright line rule between felonies and misdemeanors, which the justices didn't seem particularly interested in, whether they were going to attempt to distinguish between violent and nonviolent crimes, which also the justices didn't seem particularly interested in, whether they were going to do so on a case-by-case totality of the circumstances test, which wouldn't provide a lot of clarity to officers who want to follow the law. But one theme that came up in oral argument was the relevance of history and original meaning. So we've talked about before how, you know, the Republican appointees on the court are oftentimes associated with originalism as a methodology, the idea that the original meaning of the Constitution provides determinant answers. And that's what courts should look to when attempting to decide what the Constitution means. But at oral argument, Justice Kavanaugh

actually asked a question which seemed to imply he wasn't so sure whether history and originalism actually provided any real answers in this case and potentially others. So let's play that clip here. Let me ask you a question now about methodology. The original meaning of the term unreasonable in the Fourth Amendment, it seems to me that's a different kind of term than search or seizure or cruel and unusual. Unreasonable means unreasonable. So what we're really talking about is not original meaning or original intent or even original expected application, because I'm not aware of anyone in the first Congress or in the state ratifying processes that said unreasonable means the common law. And the text is unlike the Seventh Amendment, which refers to the common law expressly.

And Professor Lefebvre and others have pointed this out. So it's not really original meaning or even original intent. It's more like presumed, original, expected applications, like a Justice Douglas style interpretation. No offense to Justice Douglas, but a little more freeform than what we usually talk about when we talk about original meaning. Just want to get your response to that. And actually, one other thing I wanted to mention in the same vein is that I thought Amanda Rice was really refreshing on this point. So as we've mentioned, she was in this case as an appointed amicus

to defend the California court judgment below because both the defendant and the state of California agreed that the lower court got it wrong. I will note as an aside that she filed her brief as an amicus curiae, which I noted because I remembered that Vicki Jackson and I think Catherine Carroll and one of the other very few female amicus appointees actually filed as amica curiae. But she, in fact, filed as amicus curiae. Anyway, so Gorsuch was pressing her sort of on the same question but from a different direction than Kavanaugh on whether at the time of the founding it was clear that officers had the power to enter homes in pursuit of any and all suspects. And he kept repeating, like, as an original matter, as an original matter, like a mantra. So let's listen to that clip and how Amanda responds.

Well, I thought we just agreed that there is no rule of common law that any and all misdemeanors allow entry of the home in a pursuit or the Solicitor General's view. I thought that was common ground. I'm sorry. No worries, Justice Gorsuch. I think the point is that the common law just doesn't map on very well to the question presented in this case. And that's true for a number of reasons, including that an unlawful entry would not have provided a basis for overturning a conviction, but also because

some authorities, which were debated and patent, suggested that a warrant wasn't required to enter a house to make an arrest in the first place. So the hot pursuit justification wouldn't have been necessary. But I think it's fair to say that there just wasn't a clear answer here at common law. And so other modes of constitutional analysis should control. So I just thought it was, again, very refreshing that she just seemed to say to him, this line of inquiry isn't going to get us there. There just wasn't a clear answer at common law. So we have to look to other modes of constitutional analysis. And it was actually this moment that I felt like maybe only an appointed amicus or amica has the freedom to do, right?

Like if you're representing a client and Gorsuch wants you on this original meeting train, like you got to get on the train, right? You know, you give him what you can. But I think if you're here because they have pulled you in, maybe it's okay to be a little bit more forceful about what you view the limits of a particular methodology to be. The moment really struck me as one you don't often encounter. And I do think it was sort of the particular kind of unique status that she occupied in the argument that permitted her to kind of resist a

little bit what Gorsuch was asking of her. That's really interesting. And it, again, makes me wonder about the propriety of this practice of amicus appointments, because you would think that if people who are representing clients feel the need to tell a justice yes, when they are representing an actual client, that's because they think it's more likely that they will win. So does that mean court appointed amici are not actually representing the interests of the side that they are being appointed to represent because the other side isn't adequately doing so? It's just kind of an interesting question. It's so interesting. Well, and it's really, it goes to how underspecified the role is, you know, I don't think the court, it's, does the California, I think it was like an intermediate appeals court, actually, that was the ruling that was being reviewed. Like,

does that appeals court, like, have an interest in actually, you know, like winning on the terms that Gorsuch, you know what I mean? Like? It's just like the identity of the client is so ambiguous when you are the amicus. And in this case, it was especially odd because the Solicitor General's office was on the same side. So in some ways, that position was being represented, and it wasn't as though Erica Ross for the SG's office was taking the exact same position.

It was a much more kind of categorical position that Rice was advocating, which was the position that the California court had taken, which is like, you know, hot pursuit is hot pursuit, misdemeanor, felony, whatever. If there's, you know,

you don't need probable cause, you can just go in if you're, you know, if you think somebody's committed a crime or if you have probable cause to believe that they have. And Ross's was a little bit more nuanced a position, but it wasn't like an unrepresented position. So anyway, I just think

it's an endlessly fascinating kind of practice. And I love all these arguments. And I also love listening to see whether the chief will deviate from this script that he always uses at the end to thank and invite you for participating. He's like, you know, you briefed, I don't actually remember it verbatim right now. I should have looked it up before we start recording. But you know, you briefed and argued this case, our invitation, you know, you've ably discharged that responsibility. And I always am like, maybe he'll just like tweak it a little bit. Never. Not even like a syllable, nothing different.

I think he knows what would happen if he did tweak it, as we'll talk about when we get to the Supreme Court's opinion release and U.S. Fish and Wildlife Services. Like people would be pouring all over it and trying to find hidden clues. Totally. So true. All right. So let's move on to recapping at some length the arguments from this last week. The first we were going to talk about was United States versus Arthrax, which is this super interesting appointments clause challenge to the structure of the Patent Trial and Appeals Board, or PTAB, and in particular, the constitutional status of the administrative patent judges or APJs who sit on that board who decide inter partes review cases and other things pertaining to the validity of patents. So a little bit of background here,

under the appointments clause, principal officers have to be appointed by the president and confirmed by the Senate, but inferior officers can be appointed by the heads of departments, like the heads of agencies, in this case, the Commerce Department. And here, the first question in the case is whether these PTAB judges are principal officers or inferior officers. The Federal Circuit held that they were principal officers and thus their appointment by the Commerce Secretary, which would be fine if they were inferior officers, was unconstitutional. So I think it's important to understand this case as part of the broader project or desire to increase the amount of presidential control over administrative agencies. You can think of the case we talked about last term, CELA law versus CFPB, as one part of that trend. And of

course, Justice Gorsuch actually explicitly brought this up at argument. So let's play that clip here. Good morning, Mr. Stewart. Last term, the court in CELA law said that executive officials must always remain subject to the ongoing supervision and control of the elected president. Through the president's oversight, the chain of dependence is preserved so that the lowest officers, the middle grade, and the highest all depend as they ought on the president and the president on the community. I'm struggling to understand how that interpretation of our Constitution squares with your argument that not even the president of the United States, either himself or through his subordinates, can reverse a decision of APJs. Where's the chain of dependence?

So, again, like you can think about this issue as being how issue as being, you know, how much presidential control is required over these administrative agencies. And for the court's conservatives, they think it's important to basically give more control to the president over these agencies, whether that's to make them more accountable, whether that's to more clearly put them beneath the presidency, which is actually a constitutionally created branch of government rather than, you know, this fourth branch, unclear. But again, it is this kind of project of like remaking or restructuring or just changing, you know, what the administrative state is about. Yeah. Justice Kavanaugh also like beat Justice Scalia's famous line from Morrison v. Olson about kind of the same issue into a dead

horse. Let's play that clip here. It's actually multiple clips, so we're going to have two of them. Okay, stay tuned. Thank you, Chief Justice, and good morning, Mr. Stewart. I'm not sure this wolf comes as a wolf, Mr. Stewart, but I still think it may be a wolf, as Justice Scalia famously said. And he said, in those cases, it can be discerned by careful and perceptive analysis. Those questions pointed that out. And what I'm worried about, this is the wolf. What I'm worried about is this gives a model. I thought this was just such a, another example of this kind of strange status of this Scalia dissent in Morrison. So it's a dissent, right? It is still a dissent.

The court hasn't overruled the majority opinion. It was a dissent in an 8-1 case. Yeah, it was a lone dissent. He was alone. And yet, you know, it has sort of been treated. I think Kavanaugh kind of treats it as binding law. He sort of talked about it that way at his confirmation hearing. I think Kavanaugh kind of treats it as binding law. He sort of talked about it that way at his confirmation hearing. I think others do too. I think that's, I mean, Kagan has said

extremely favorable things about it. I think there's been, I think, some debate about whether she was praising the writing. It's a very well-written dissent. Well, I mean, based on her writing in the Selah dissent, it's somewhat clear she doesn't actually think the dissent was right in Morrison, given that she was favorably't actually think the dissent was right in Morrison, given that she was favorably inclined to read the majority opinion pretty broadly, but... Totally. But she definitely likes the right. We all can agree it's a very well-written dissent, and yet it is not the law, and yet it is treated. And I think that's for a couple of reasons, right? Like one, I think it's because the intervening events, in particular, right,

Ken Starr's independent counsel seemed to have borne out some of Justice Scalia's dire predictions, right, about the danger of this unchecked roving prosecutor inside the executive branch not answerable to the president. And also because like, you know, sort of technical reasons, Edmund, this later appointments case sort of distinguished Morrison when asking about how you decide if somebody is an inferior officer. But there is just something strange about the way a number of justices on the Supreme Court talk about this lone descent. Again, very well written, lots of memorable lines, or in particular that this wolf comes as a wolf line. But it's not our law, right? Well, it's actually a really fascinating example of this phenomenon that some people call the Constitution in exile or, you know, jurisprudence

in exile, basically when, you know, one ideology's side or when one political group's side, you know, loses an opinion at the court, a group of academics, a group of lower court judges will basically try to, you know, bring back the dissent or kind of bolster the dissent so that one day that dissent will become the law. And, you know, we've seen a bunch of academic commentary, again, praising the Scalia dissent, talking about how it was obviously correct in light of intervening developments, you know, blog posts, lower court judges, you know. When Judge Kavanaugh was on the DC Circuit, he would write about how Morrison was basically proven right and Humphrey's executor was this lone one-off exception. And this is something that, again, the conservatives are

really, really good at, basically developing their own bodies of law. And then they emerge basically ready to become the actual law when they have control of the courts. Whereas there's just like nothing really akin to that on the progressive side, from what I can tell, like, where's the movement of progressive scholars who are treating Justice Kagan's dissent in Selah law as if it was law, like what lower court judges are doing that as well. Like, it's just, it's just not happening. We are doing our part, Leah. We are doing our part. But yeah, no, I think that's, as you were talking, I was just like, right, I feel like there are like binders that FedSoc has prepared that literally have draft opinions that contain the language, you know, the majority in Morrison versus Olson. This wolf comes as a wolf. This is Justice Scalia's

wolf. Or literally like, you know, that Morrison was wrong the way it was decided. It should be in hereby is overruled. Like, Kavanaugh has that drafted somewhere, right? And it's just a question of when he gets to deploy it with four other people or five other people on his side. So anyway, that was an interesting sort of, you know, subtext of the entire argument, I thought. Yeah, and it came up again, as you were alluding to, about whether subsequent cases have in fact vindicated the Scalia dissent. You know, the subsequent case Edmund is one of them. And here is an example of Justice Kavanaugh just, again, flat out asking whether Morrison is in fact still good law. Is the Morrison test still alive after for Morrison test for appointments clause purposes

still alive after Edmund? So another way of thinking about this case, in addition to thinking about, you know, the amount of presidential control that is required over administrative agencies is about these competing intuitions between flexibility on the one hand and hard and fast rules on the other. There were repeated suggestions that this case is somehow particularly troubling because this is the only kind of administrative law judge for which the decisions of the ALJ aren't ultimately reviewable by the head of the agency, you know, the PTO director or the Secretary of Commerce. But, you know, here there's an arguably pretty good reason for that. You know, we're talking about an adjudicator, and you might think that it's not appropriate to vest

final review of a decision of an adjudicator in an executive branch official. Also, brief, selfish plug, this provides an occasion for the court to write another historical wrong beyond the Morrison decision, apparently, and that is the court's failure to cite my anti-novelty article, which argues that the mere fact that a practice is new and is a historical anomaly is not, in fact, an indication that is unconstitutional. So, Steve Breyer, Elena, Sonia, I'm looking at you. Fight the good fight on the substance of this opinion, but if you're going to lose, at least cite Leah going down. Right, exactly. So Steve Breyer, speaking of our friend Steve,

asked a classic Steve question. Let's play that one now. I'm just curious. You may not have thought about this, but maybe the SG's office has. But in peekaboo, if we go back to that, I dissented and had a very long appendix with dozens and dozens of people that I suddenly thought were, they seem to be like here, we used to call them hearing examiners. And really, they used to be civil servants.

All kinds of shapes and sizes in terms of powers, and they suddenly all became officers of the United States. But the majority said, we're not saying they all are. We're just talking about peekaboo. So are these people officers of the United States? Why is my answer. I'd like a line, if you've ever thought of one, between the statement in peekaboo of the majority.

Don't worry, they're not all officers of the United States. Have you thought of a distinction there between the long list and Peekaboo, and would it apply here? In addition to revealing that he calls the case that I always call a free enterprise fund peekaboo, which I've heard people call it before, but never a justice. Have you? I don't know that I've heard a justice call that before.

But if anyone was going to do it, it was going to be Steve. Clearly. I just love, you know, references, his appendix. You know, why is my answer? Why? It's just everything about Steve came through in this question so just it

was a very thorough appendix i went back yeah it was i was like i had forgotten quite a while i remember it being long but it was really thorough um and i you know i don't know if there's a clip that distills this in quite the same way but kagan was also i thought just really terrific in this argument and i kind of felt like you just were talking about cella law um all of the fire that she brought in that cella law descent and then some of the parts of her Gundy plurality, right, in which the sex offender registration requirement, like, narrowly survives this non-delegation doctrine challenge. And in that case, she's sort of striking this incredulous, like, really, we're going to burn down the whole apparatus of government? Like, all of that energy, I thought, was kind of on display in this argument. And she just feels to me kind of exasperated by her colleagues kind of fetishistic formalism in these separation of powers cases, right? Like in Selah Law, her outrage at the idea that the court is going to just blow up agencies. Now, look, it does. It's, you know, it's a more surgical sort of remedy in the CFP case's sale of law. But the court is, you know, generally willing to undo much of what Congress does in creating the administrative state. This particular court has shown itself

willing to undo a lot of Congress's handiwork because they decide that certain institutional arrangements will, you know, like somehow slightly encroach upon an unfettered presidential removal power that, by the way, is nowhere written in the Constitution. They've just decided that it's this sacrosanct principle. And all of that operates to give the president massive power. But, you know, of course, that's okay, because the president's popularly elected, except as we've talked about many times, the court actually isn't willing to enforce, you know, the mechanisms by which popular election of the president, even within our electoral college system, is meaningful. But like the

majority's total unwillingness to defer to kind of congressional choices about how to structure administrative agencies, and then paired with, to bring, to come back to Gundy, the majority sort of insistence, I'm saying majority, it wasn't a majority in Gundy, but it's the majority that is clearly coming, right? Because in Gundy, you know, it's our constitution in exile. That's right. Yeah. So we're, even if the doctrine hasn't caught up yet we're like we're already sort of in the kind of defensive crowd of exile um but so the view in gundy right the non-delegation doctrine you know might actually unsettle right a lot of administrative agency arrangements um and that you know the kind of gorsuch wing of the court sort of wants to do that, right, to revive the non-delegation doctrine in this sort of ostensible like defense of Congress. But in doing so, it's going to invalidate tons of what Congress does in choosing how to structure administrative agencies is just like a maddening set of, I think, conflicting convictions. And, you know, here, just like to bring it back to the case more concretely, the kind of tenor of some of the questions from the conservatives, and obviously the, you know,

arguments, were just like this kind of insistence that the type of review to which these APJ rulings have to be subject, right, so it's not sufficient here, because they're not, you know, there isn't a politically accountable superior, who's able to, you know, actually reverse or overrule the rulings of these APJs, somehow that that undermines democratic accountability because people need to know exactly who to blame for these specific decisions so they can hold them accountable. And that there's going to be a meaningful difference from the perspective of democratic accountability between some meaningful review, but total de novo review just seems to me

kind of an absurd proposition. Again, it's like this sort of really fetishistic, formalistic approach to agency design. And I think Kagan's point in her, you know, colloquies in this case, and a lot of her writings in this area, are just like, Congress actually has always had a lot of leeway to kind of experiment with agency structure. This, of course, goes back to your debunking anti-novelty. And that none of the kind of specific attachment to particular constitutional rules, some of which don't even have any foundation in the text of the Constitution, should not be used to unsettle those kinds of choices and kind of longstanding arrangements.

I don't know why I thought of this now, but I taught CELA law for the first time this last week in constitutional law. And as I was doing it, and particularly as I was prepping for the class, reading Justice Kagan's dissent, I just repeatedly had the thought, like, you can stop. He's already dead. And like, it's just, it's so... I don't teach in my 1L Kamala class. I should do it. Was it good? Did it go over well? I mean, hard to say, but I enjoyed teaching it. Was it fun to teach? Yeah. That's it. Yeah. It's a truly incredible dissent, which I have practiced writing the sentence.

I can't get into sentence. It was correct the day it was written. The day it was decided. Exactly. It is wrong in the court of history. It is overruled in the court of history. We take the formal step today. Cannot wait until we get to write that. All right. So now back to the case. PTAB judges. Okay. So in the case, there's also this equally important secondary question, which is if the current

arrangement is unconstitutional because PTAB judges are principal officers rather than inferior officers, what is the remedy in the case? That is, what provision or provisions should the court invalidate? You mentioned SELA law. That case involved a restriction on the president's ability to remove the head of an agency. In those kinds of cases, the remedy is clear. You just eliminate the restriction on the president's ability to remove the head of an agency. In those kinds of cases, the remedy is clear. You just eliminate the restriction on the president's ability to remove a director. Here, however, there are a bunch of different provisions that constitute the responsibilities and powers of a PTAB judge and who they're accountable to and in what sense. And so

the Court of Appeals for the Federal Circuit, which held that PTAB judges were principal officers, chose to invalidate the provision that restricts the Secretary of Commerce ability to fire PTAB judges on the theory that, well, if they could fire PTAB judges at will, well million different features of the PTAB structure that might be the one that could change a PTAB judge from a principal officer to an inferior officer, such as whether the remand the case for Congress to decide how it wants to fix it and let Congress choose which provisions to amend in order to make PTAB judges inferior officers who can be appointed by the department head? Yeah, I mean, as the kind of remedial exchanges sort of played out, I just found myself thinking, like, if the court does reach the, I think, clearly incorrect conclusion that these judges are principal officers, it's really hard for me to see a clean fix that the court could defensively make, like, probably Congress just needs to decide if it wants. I mean, the idea of requiring presidential appointment and Senate confirmation for the 200 plus of these judges seems insane to me. There are already hundreds too many presidential

appointees subject to Senate confirmation, but that was certainly one of the remedial prospects that was floated at the argument. Presumably Congress wouldn't choose that route, but that it would probably make more sense to just give it. But of course, I mean, Congress chose what I think is a perfectly constitutionally defensible arrangement here. So it shouldn't have to go back to the drawing board, but probably the court should give it a chance to do that if it decides that this arrangement doesn't fly. I mean, I definitely thought, I'm sure that you did too, sort of was listening to the argument, trying to, you know, like hear clues about the ACA case, because of course, severability is so central to

that case. I didn't really have a clear sense, except for Kavanaugh was like, severability is kind of a misnomer. And I was like, what does he mean by that? But otherwise, I didn't feel like I got any clues. But my only thought is that whatever the court does here, I do hope Kagan writes because I just love her in this area. Yes. Yeah, me too. Okay. So the second case we wanted to talk about in depth is Brnovich versus DNC. This is the case about enforcing the voting rights, but like actually enforcing the Voting Rights Act. Specifically, as we talked about last week, the case is about what kinds of state laws or procedures violate Section 2 of the Voting Rights Act because they result in or

have the effect of disadvantaging voters of color. On the preview episode, we noted that Arizona and the Arizona Republican Party were advancing various theories to limit the Voting Rights Act and various theories that would make it more difficult for plaintiffs to prove that a law has the effect of disadvantaging voters of color in a way that violates the Voting Rights Act. And in part because the advocates were maybe not the best, and in part because Justice Kagan brought out her ninja knives at oral argument, it seems like the court is not going to embrace some of the wildest or most expansive theories for limiting the Voting Rights Act. But I also think it's clear the court will be limiting the Voting Rights Act in some way and

making it more difficult for plaintiffs to show that a law results in discrimination. But again, maybe not in the ways that the Arizona and Arizona Republican Party were asking for. So what Arizona and the Arizona Republican Party were arguing for were kind of two rules. One was that laws that result in a substantial disparity violate the Voting Rights Act, but laws that merely result in some disparity are fine. And again, because the laws at issue in these cases affect something like three to 4000 voters, that might not be a substantial disparity. And then the second theory, which is I think the more far-reaching one, was that laws that preserve an equal theoretical opportunity to vote are fine,

even if a state eliminates voting procedures that are predominantly used by voters of color. So the example we talked about in the preview episode is if a state, for example, eliminates early voting or mail-in voting, all voters still have the theoretical equal opportunity to vote in person. And therefore, it's not clear that that would violate the Voting Rights Act. And that would be a dramatic reduction in the scope of the Voting Rights Act and, again, would allow states to refashion voting procedures in ways that seem to advantage particular kinds of voters. There's an amicus brief arguing that Section 2 is actually just unconstitutional. It did not seem as though that was on the table as a possibility, but it didn't actually even seem like Arizona was seeking that from the court. So they were never asking the

court to invalidate Section 2 in this case, But one of the reasons they were giving for why the court should narrow the scope of Section 2 was that if Section 2 were interpreted so as to call into question many different laws and policies that result in differential burdens on voters of color, then that would be unconstitutional because it would have the effect of requiring states to take into account of race or adopting some sort of proportional representation in voting system. And that raises constitutional problems. So it was really, I think, kind of like a backdrop to some of the arguments they were making about how the Voting Rights Act should be interpreted. And you said you used a ninja metaphor.

I would say that I thought of Justice Kagan playing chess while everybody else is playing checkers. And that like includes like her colleagues, definitely the lawyers for Arizona and Arizona GOP. Did you watch Queen's Gambit on Netflix? Yeah, that early scene where Beth Harmon goes to that middle school gym, or maybe it's a high school gym and round robin plays and beats everybody in like 20 minutes. I just felt like she she did that first to Michael Carvin, who's representing the Arizona GOP, and then to Brnovich, who is representing the state of Arizona. She's basically, she didn't even bother to repeat her question. She was just like, she asked this deadly question that we'll play in a minute and then just sort of turned to

the second lawyer for that side. And so I'm like, what'd you think about that question? You basically had 15 minutes to think about this and you come up with anything good? Well, I had this like moment of terror, which like, of course he was listening, right? Like it's his case. But I was like, I could imagine being like really focused on like honing a few things I wanted to say and tuning out. And like, God forbid you have to ask, I'm sorry, Justice Kagan, what was that question again? But no, luckily for him, not for the quality of his answers, but just like for the cringe factor for all of us, luckily he clearly had been paying attention, which didn't really help. But okay. so let's play that. I mean, basically what happens is Justice

Kagan gets Carvin to back away from this kind of like full-throated, pretty insane equal opportunity theory by acknowledging that some laws, you know, in theory preserve equal opportunity, but clearly result in differential burdens would violate Section 2. So let's play that clip now. Justice Kagan? Mr. Carvin, I have a number of hypotheticals for you, and I'd be grateful if we could run through these fairly quickly just so I can get an understanding of your position. So the first one is that the state decides that each county can have one poll in place. And because of who lives in larger counties, that creates a disparate impact, that black voters have to wait in line for ten times the amount that white voters do,

two and a half hours instead of 15 minutes. Is that system equally open in the language of the statute? I would think not. Equally open means takes into account demographic realities. If you have one polling place for five people and one polling place for five million people, obviously in the latter situation, those people do not have an equal opportunity to vote. Okay. How about this one?

That's helpful. That's helpful, Mr. Carvin. A state has long had two weeks of early voting, and then the state decides that it's going to get rid of Sunday voting on those two weeks, leave everything else in place. Black voters vote on Sunday ten times more than white voters. Is that system equally open? I would think it would be because let's think about it. Sunday is the day that we traditionally close government offices. It would be the exception rather than the rule to have government

workers come in on a Saturday. It's an exception to have government workers come in on a Saturday too. That's not a real problem. Well, I mean, there are Sunday closing laws, as we know, from McGowan v. Maryland, which are different than Saturday. But in all events, Saturday would implicate other religions. Okay, so that is equally open. Thank you, Mr. Carvin. Can we just go on to another one? The state says we're placing all our polling places at country clubs. And that decision means that black voters have to drive 10 times as long to the polls and have to go into places which, you know, are traditionally hostile to them.

Yeah, I would think that would provide them with less opportunity than non-minorities. And why is that? Well, because they have to travel further into hostile territory where non-minorities can travel one block to very sympathetic under any definition of whether or not they have less opportunity. The state says we're going to have Election Day voting only, and it's going to be from 9 to 5. And there's plenty of evidence on the record that voters of one races are 10 times more likely to work a job that wouldn't allow them to vote during that time period. Is that system equally open? Seems like it, because that would be pretty much the status quo in 1982. And of course,

if it was eight to seven, you could make the same argument about how about nine to three people. I think any time you diminish from what I will call the usual burdens, if you went to 15 minutes, to use an extreme example, then obviously you're effectively denying the opportunity. So 9 to 5 is okay, but 10 to 4 would not be okay? Is that the idea? Again, these are all hypotheticals that have never existed in the real world. This seems like, you know, it doesn't seem so fanciful to me.

States are doing this. Nine to five is okay. Ten to three is not. Is that the idea? It might be difficult to appreciate just how devastating this was. Again, it's important to remember that in the brief,

the Arizona Republican Party was arguing that all laws that, again, preserve equal opportunity in theory, you know, that don't create one set of rules for voters of color and another set of rules for white voters were presumptively fine under Section 2. And then, you know, in the first 30 seconds of her question, Justice Kagan got the GOP Arizona lawyer to back away from this. And illustrating how significant and just devastating this was, other justices who questioned later would refer back to what Michael Carvin said in his brief rather than said today, again, signaling just how much confusion this had created when the lawyer was backing away from the position in the briefs. Yeah. And I mean, I don't know if it's going to move votes, but it definitely seemed to be, you know, Barrett seemed potentially kind of moved by Kagan's hypo. She definitely referred to the question and the answer Carvin had given on her questions. I think in the second round of questioning, Brnovich didn't get to finish his last answer to Kagan and Gorsuch just said like, oh no, just answer that. I want to hear

the answer. You know, like she's just like, I just feel like they're all kind of acknowledging just how good she is at this. It doesn't mean she's going to win them over. But as to oral argument, she really just kind of is in her own category. Yeah, but she will make it more humiliating for them when they ultimately vote for this position that she has just utterly demolished within the span of 60 seconds. Yeah, she will. So where do I think the court will go if they're not going to embrace the

full-on equal opportunity theory? I think it's probably a combination of things that they're going to say to make it more difficult for plaintiffs to prove Section 2 claims. One is, I think they will probably embrace some version of the substantial disparity theory, or at least say that the disparity can't result from either state laws that are common, or the disparity can't result from the usual or what they would describe as standard burdens of voting, like some amount of wait time, or perhaps also leaving your house. Can I just say I found that, Karvin said this a bunch of times, I found that so maddening because the idea that we want to like cement this notion that leaving your house, that voting in person is like interchangeable with voting in a moment in which, first of all, Arizona, I think has had pretty expansive vote by mail for a long time. Most Western states have,

but certainly many states in the country have for the first time allowed most or all people to cast votes by mail. But to say again and again, you know, this is part of voting. This is an ordinary incident of voting is to leave your house, go to the polling place, find your name. That's not there's no essential truth to that. It has historically been part of voting in lots of places, not everywhere in this country for decades. But he would like it to be right. Yeah. And I found that like a sort of a sneaky attempt to frame the issue, such that that is, you know, that requiring that

is never going to be a burden. It was also to me doing a real disservice and undermining how significant the Voting Rights Act itself was like as if this major legislation, which followed on the heels of Bloody Sunday, in which, you know, peaceful voting rights protesters were met with extreme police violence, leading, you know, the president to meet with civil rights leaders and pass this major legislation, like that legislation did not lock in state laws that were common at the time, which, again, people recognize were problematic. And that's why we needed federal legislation. And it really bothered me at several points when various justices were like,

oh, well, the bill contained this particular compromise. And it's like, yeah, sure, all bills contain compromises. That doesn't detract from, again, how significant and revolutionary this law was to our constitutional democracy. And like, we should be interpreting it in that light. Right. And that's true about, of course, the original Voting Rights Act. And it is also true about the 1982 amendments that are sort of that explicitly allow for disparate impact liability after the Supreme Court mistakenly held challengers to a higher standard in City of Mobile versus Bolden, right? The Congress came back and said, no, you don't have to show intentional discrimination. If a law has a disparate effect on the basis of race, that's enough to violate

Section 2. And it just felt like this whole project is in such tension with that obvious purpose of the amendment. Yeah. So that's one way that I think they will probably trim the sails of Section 2 a little. I think they will also do so by saying the state doesn't have to prove that it is solving an actual or real problem. That is, there's conceitedly no evidence of actual fraud here when people other than the voter return a ballot. And yet the justices seem to say, well, the state doesn't need to prove instances of actual fraud. They can say, well, this commission basically said, you know, prohibitions on ballot collection are fine,

and that's enough, even without an actual problem. And then last, I think, you know, they will also probably do something to make the causation standard in these voting rights claims potentially more difficult for plaintiffs to show and basically suggest or require that plaintiffs prove that the disadvantage results from the state law rather than, you know, what the Arizona lawyers or the Arizona GOP lawyers were calling demographic realities or socioeconomic status, which, of course, is super problematic because you're basically saying, you know, states can enact laws that they know, you know, create these burdens in light of demographic realities and socioeconomic status,

and that somehow makes it less problematic rather than problematic or more problematic. But I think that is where I took the justices to be heading. A couple of other maybe notable moments from argument. Justice Barrett, of all people, got Michael Carvin to say that the RNC had an interest in this case, because it doesn't want certain people to be able to vote or certain votes to be counted. Like it was a pretty striking moment. Let's play it here. OK, Mr. Carvin, let me move on to a different question. I'm interested in knowing why the RNC is in the case. and the district court said that it had standing to challenge the out-of-precinct policy

because the policy placed a greater imperative on Democratic organizations to educate their voters and because the policy harmed its members who would have voted out-of-precinct. What's the interest of the Arizona RNC here in keeping, say, the out-of-precinct voter ballot disqualification rules on the books? Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero sum game. And every extra vote they get through unlawful interpretations of Section 2 hurts us. It's the difference between winning an election 50 to 49 and losing an election 51.

OK, thank you. My time is up. So I don't think she was intentionally trying to get him to say this. Okay, thank you. My time is up. Yeah, I mean, I think you're in terms of your sort of bottom line prediction, I think you're probably right. I am really curious to see where Chief Justice Roberts lands in this case. I mean, ordinarily would presume that if it's a, you know, there's a chance to restrict the Voting Rights Act, that John Roberts is 2021 is the same John Roberts from 2013, right, the author of Shelby County, like, I actually am a, I'm not sure he is. Either way, I think it'll be very interesting to see where he lands in this case. We shall see. All right, so should we move on? We got a couple of opinions this week. Should we talk about those? Okay, so the first of these, U.S. Fish and Wildlife Service versus Sierra Club, was Justice Barrett's first majority opinion.

It was a 7-2 opinion siding with the government in a case involving the Freedom of Information Act or FOIA, specifically whether certain draft biological opinions are covered by the deliberative process privilege, which means that they are exempt from disclosure under FOIA, actually Section B-5 of FOIA. So the Sierra Club had argued that these documents were final, and thus they were not pre-decisional and deliberative, which is required to qualify for the exemption. But Barrett said, no, these documents, you know, are sort of understood as like drafts of drafts, and thus they are pre-decisional and deliberative. They are subject to this exemption, so they can be withheld, right, under FOIA. It was, you know, sort of interesting. Look, so new justices often get as their first opinions,

pretty narrow, unanimous opinions. This was a narrow opinion, but it wasn't a unanimous one. It was short, it was 11 pages long. But it was kind of interesting that it made me wonder whether like Breyer and Sotomayor peeled off because they dissented. Although we should say it was, this is a pretty gentle sort of dissenting opinion, right. Breyer doesn't usually bring tons of fire anyway. Sometimes he does, but not all the time. But here there was like no fire. He was like, I think I would have remanded for the lower court to determine whether these documents actually were drafts of drafts. And if they were, then the majority is right.

So it was like a mild disagreement, which meant it really raised some eyebrows when he said at the end of his opinion, I dissent and omitted the customary respectfully or with respect. People noticed. And, you know, it was kind of a fun 24 hours of speculation. And then in less than 24 hours, he had edited his opinion to say for these reasons, with respect, I dissent. I don't know. I mean, it's fun to speculate. Maybe it's nothing. But it's, you know,

there's a couple of possibilities, right? So one is that maybe there actually is some bad blood in there, right? Like it made me think about, I hadn't thought about this in a while. Remember how early on in Gorsuch's tenure, you'd sort of hear a little bit about like beef between Gorsuch and other justices. He was like kind of irritating others, in particular the chief. I remember that exchange. I don't even remember what the case was. But when Gorsuch like jumped in an oral argument to correct the chief justices, he was asking a question about like interstate I-90 versus I-95. And Gorsuch jumped in and said like, oh, no, no, it's interstate I-80. And then like 10 minutes later, I think maybe interrupted again or maybe like actually was about to ask a question and then said,

I'm sorry, like totally chagrined. I'm sorry, Mr. Chief Justice. It was I-90. again or maybe like actually was, you know, was about to ask a question and then said, I'm sorry, like totally chagrined. I'm sorry, Mr. Chief Justice. It was I-90. Robert's like, I think that's what I said. So he jumped in to incorrectly correct the Chief Justice. And I felt like you had like a little bit of glimpse that maybe the two were not like getting on famously. Anyway, is that what we just saw a glimpse of with Breyer and Barrett? Hard to say. I also, I was not entirely convinced this was a super

narrow opinion, just because while it was ostensibly just about biological opinions that the EPA was doing, or, you know, Fish and Wildlife Services was doing, you know, I think, you know, she says it would apply to all drafts. And given, you know, the court's conclusion that on these facts, these were kind of definitely drafts or drafts of drafts. I can see this particularly in the hands of executive branch lawyers, you know, making arguments about whether something is subject to FOIA disclosure or not, this opinion being quite expansively deployed.

Okay. So then maybe, so you think that maybe the agreement is sharper than I had suggested. So maybe Breyer really was mad and meant to signal it? I mean, hard to say. But yeah, I guess I didn't read this opinion as necessarily that narrow. Okay. So then what about the, so,

so putting that aside, is the possibility, is it there a possibility that it was just kind of the omission of respectfully or with respect about, you know, he was distracted because he's working on another major writing project. What would that other major writing project be? I mean,

with respect, I retire. You know what you can you can leave out the with respect in that one Steve just get to the punch line I retire to the punch line he needs his wind up he can take whatever wind up time he needs he just needs to get there is the point so no I am sure a retirement letter would be a long one. Just seems in character. Probably. So maybe he's refining it. Yeah.

Maybe it has an appendix. I mean, we'll see. Will we see? Oof. Okay. A second opinion we wanted to recap was Pareta v. Wilkinson. This is a 5-3 opinion by Justice Gorsuch with Justice Breyer dissenting, joined by Justice Sotomayor and Justice Kagan. Justice Barrett was not yet on the court when the court heard oral argument in this case.

So the case is about eligibility for certain forms of relief from removal, in particular cancellation of removal. Structure of immigration law is super basically non-citizens who commit certain crimes are subject to deportation and removal, but they may be eligible for relief from removal. If, for example, they have lived in the United States for a long time, have U.S. citizen children or dependents, present no security or safety threats, and so on, they might be eligible for cancellation of removal. And here, Mr. Pareda had lived in the United States for over 20 years. He has children, including a child who's a U.S. citizen. And so he applied for cancellation of removal. But you're not eligible for cancellation of removal if you have been convicted of certain crimes.

And those are a different subset of crimes than the ones that make you deportable. And the question in this case was basically, how do you know if someone was convicted of a crime that makes them not eligible for cancellation of removal when they were convicted under a statute that contains multiple crimes, some of which would make you eligible for removal and some of which would not. So Justice Gorsuch in the majority basically resolves this case by saying an immigrant has to demonstrate their eligibility for cancellation of removal and the immigrant can't carry that burden when the record shows they were convicted under a statute listing multiple offenses, some of which are disqualifying, and the record isn't clear which crime formed the basis of conviction. So you're not eligible for cancellation of removal if you committed a crime involving moral turpitude. Mr. Pareto was convicted of criminal impersonation, but you can be convicted of criminal impersonation by doing a million

different things, including just carrying on a profession without a license. But other forms of criminal impersonation are pretty serious, like doing things to deceive or harm others, like stealing their identity and taking all of the money out of their accounts and so on. Those more serious crimes would be crimes involving moral turpitude. In dissent, Justice Breyer, rather than focusing on who bore the burden of establishing eligibility, was all like, yo, remember the categorical approach. So it's a major rule in the court's cases on what counts as qualifying convictions for immigration law and criminal law. And the rule, the categorical approach, is that you only have a qualifying conviction

if the statute you were convicted under defines crimes that fall under the federal definition. That is, if the statute prescribes more conduct, criminalizes more conduct than fits the federal definition, you don't have a qualifying prior conviction. And that rule, Justice Beyer said, resolves this case. Because if you apply that rule, then of course Mr. Pareda is eligible for cancellation since he was convicted under a statute that prescribes more conduct than would qualify as a crime involving moral turpitude. The case is potentially quite

significant. It could disqualify a bunch of lawful permanent residents from being able to get cancellation of removal, particularly in cases like Mr. Paredes that involve criminal impersonation, you know, people who might not be authorized to work in the United States doing so anyways. And Nevada's criminal impersonation statute isn't all that unrepresentative. Okay, so let's just briefly wrap a little court culture. In some ways, we're going to note the absence of good material for our final segment. Give us some good material. We're basically begging for judicial nominees. Like that's what we would spend the next 10 minutes talking about. Like what kind of nominees Biden is sending the Senate.

And yet we can't talk about that. Look. Because he hasn't nominated anyone. If he's not going to nominate people, I'll nominate people. I choose Dale Ho for the second circuit. See, I have a pretty permissive view of the appointments clause, but I'm pretty sure that wouldn't apply. He can ratify these choices. That's right. No, absolutely. Yeah, Dale Horford, Second Circuit, we're obviously on board. You know, look, there have been a lot of

retirements. There are still a lot that, you know, a lot of judges eligible to take senior status who have not yet done so. And, you know, I think they are slowly sort of following the lead of, you know, former chief judge of the Second Circuit, Judge Katzman, and the circuit that New York is in. Yay, Judge Katzman. I think, are we right? We definitely noted this. Yeah, yeah, yeah. We talked about it. On the 21st of January, right? Like one day after inauguration. And people have followed, but there are many yet to follow. Obviously, the big kahuna to follow we talked about a few minutes ago, but we're talking now about the courts of appeals. You know, Trump, even while he was busy drafting the travel ban and other such things in his first couple of weeks and months in office, got his first appeals court nominee for the Sixth Circuit nominated on March 21st, 2017.

So the clock is ticking, right? Not that I'm like matching the Trump record should be the benchmark, right? I mean, I would hope that Biden would like to exceed it. But at least in the month of March, we have to get some appeals court nominees out of the White House, headed for the Senate. It's a process and they have to start the process before they can get people seated. And the Senate majority is just so slim and things can change quickly. And it just seems like a massive wasted opportunity not to get a whole bunch of appeals court nominees up in March and April. So I very much hope the Biden team will do that. Yeah, me too. Not just for our court culture segments. No. For the country, but also for our court. Two birds, one stone, something like that.

But, you know, I think it's also reason to hope, again, based on what happened over the last four years, that not all future nominations might take as long as the first nominations, maybe because they're getting the process up and ready, because they will start considering people who can then be considered for future vacancies that arise. And so hopefully for these reasons, like we saw during the Trump presidency, while the initial nomination took like two months, not all subsequent ones might necessarily have to do so. I think that's right. Once the machinery starts going, like it really can go, but you got to get it started. Good note to end on. Also, if any federal judges are

thinking about retiring, maybe we can do a special summer episode where we celebrate judges who have decided to take senior status. See, this is the inducement people are waiting for. Exactly. We will showcase you and your accomplishments in a special episode. Melody, you can take that out. No, don't take it out. Leave it in. Now Melody's going to put it in the open. True. That's what happens.

That's what happens when I get punished for saying something and then wanting to take it back. Exactly. Now it really is time to wrap up. Thanks to our producer, Melody Rowell. Thanks to Eddie Cooper for making our music. Thanks to Megan Markle for giving Melissa a reason to live and a cause to fight for in these dark times.

And if you'd like to support the show, you can do so by becoming a GLOW subscriber at glow.fm forward slash strict scrutiny. Thanks everyone for listening.