Strict Scrutiny - Go Down Clutching the Constitution

Episode Date: March 21, 2022

Rebecca Nagle, host of This Land, joins Leah and Kate to discuss the issues at stake in Brackeen v. Haaland, a case challenging the Indian Child Welfare Act that the Supreme Court will hear next term.Plus, Kate and Leah catch you up on the latest in SB8 news, an opinion written by Justice Kagan, and the cases the Supreme Court will hear in the next two weeks [20:54]. There's also more drama with Ginni Thomas [51:50], a judge trying to cancel student protestors [56:18], and a House hearing on workplace protections in the federal judiciary [1:01:53]. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts today. I'm Kate Shaw. And I'm Leah Littman. And we are delighted to be bringing you a brief preview of what we are hoping will be an ongoing conversation

and collaboration about some cases the court is scheduled to hear. We'll also be covering a bunch of legal news and highlighting some cases to watch on the Court's March calendar. But we're really excited about this first segment and our guest for it, so let's dive right in. We mentioned on a previous episode that we were watching the cert petitions, that is requests for the Supreme Court's review, in a series of cases challenging the constitutionality of the Indian Child Welfare Act, also known as ICWA. We also said, for those of you interested in the topic, as well as those of you who aren't currently interested but should be, that you should check out season two of the podcast This Land with Rebecca Nagel. Rebecca is a writer, a public speaker, a citizen of Cherokee Nation, and the host of the This Land

podcast. And now that the Supreme Court has agreed to hear the challenges to ICWA next term, we are delighted to have Rebecca on the show to talk about these blockbuster cases. Rebecca, welcome to Strict Scrutiny, and thank you so much for joining us. Thank you so much for having me. So maybe we can just start out with the basics. What is ICWA, the Indian Child Welfare Act, and why is it important? Yeah, so the Indian Child Welfare Act was passed by Congress in 1978. And at that time, Congress found that 25 of America money to take Native children out of Native homes and place them in white homes with the racist thinking that white homes were simply better for Native kids. The other thing that was going on at the time, though, was also just racism in the child welfare system. And a lot of things that are common in Native homes, you know, maybe a child being raised by a grandmother or an aunt was considered neglectful by child welfare workers. And so there was a really high

removal rate for those reasons. And so Congress passed the Indian Child Welfare Act in 1978. And the law really, it's actually kind of a complicated piece of legislation. It's not a law that does one thing. It's a law that does a lot of different things. I think of it as a set of guardrails. And so when a child who is either a citizen of a federally recognized tribe or is eligible for citizenship in that tribe is up for adoption or is going through the child welfare process, it was the set of guardrails that work to keep that child connected first to their family and second to their tribe and to Native culture more broadly. The law requires active efforts to work towards reunification with Native parents. It allows tribes to intervene in cases. And for tribes that where the child lives on the reservation or on tribal land, those cases can actually be automatically adjudicated in tribal court.

And it also sets out if children cannot be reunified within the child welfare system with their parents, where they should go next. And those placement preferences are really like what get litigated about the most. And the placement preferences say that a child should first go to a member of their family, second, another citizen of their tribe, and then third, a native home. So where did the challenges to ICWA originate? Like either or both in this particular case or more broadly, like why are people challenging protections for Native tribes? Yeah, that's the why is the million dollar question. And we found some evidence connected to different things, but I'll start with this case. So Chad and Jennifer Brackeen are a white upper middle class evangelical Christian couple that live in the suburbs of Dallas. And they decided that as part of their faith and really it was kind of grounded in feeling self-conscious about their wealth and wanting to give back.

But as part of their faith, they wanted to adopt, which is actually really common among their particular faith. They go to a church of Christ. They had agreed to foster a Native child knowing, actually being told by social workers, that they would not be able to adopt that child. And they fostered that child for about a year. Both his parents were struggling with drug addiction. They weren't able to maintain sobriety. And so his parental rights were terminated. And his tribe, Navajo Nation, found a Navajo home that was willing to adopt the toddler. And he was scheduled to be moved. The Brackeens intervened and they filed a bunch of petitions trying to stop the move.

What's kind of extraordinary is they got help in family court from a really high-powered law firm called Gibson Dunn and the attorney general of Texas. It took a few months, but they actually won custody of that child. And what's crazy about the origins of this federal lawsuit is that the same week that the bars to them being able to adopt this native toddler, that week is the week that they filed the federal lawsuit. So they filed a lawsuit suing the federal government saying that ICWA violated their constitutional rights because that preference for a Navajo home over their home was racial discrimination. And Texas joined them in that lawsuit saying that ICWA violates the 10th Amendment and basically states' rights. So the lawsuit's super complicated. A couple other foster families joined and some other states joined.

It's wound its way through the courts over years. It was originally filed in the fall of 2017. And then the Supreme Court just granted cert a few weeks ago. There are a number of discrete legal challenges to ICWA. It's like it's an enormous attack on the statute, right? Sort of start to finish. But Tenth Amendment arguments, arguments that the law impermissibly makes racial preferences or discrimination, that it doesn't even satisfy rational basis review. The podcast like so beautifully depicts the litigation kind of trajectory.

And the moment I can't I think it's both, there are two distinct moments. One, in which, you know, this extremely high-powered law firm, Gibson Dunn, all of a sudden enters this local filed an appearance in, again, a custody dispute, it becomes very clear very quickly that there are significant and very powerful interests that have ICWA in the crosshairs. Do you want to sort of talk us through a little bit? I mean, we can talk about what is at stake in this case, but your general kind of reporting and narrating of the likely reasons that ICWA has become the focus of all of this litigation firepower in this lawsuit, but the lawsuit as the culmination of this broader campaign. Yeah, absolutely. And I think that broader campaign is really, really, really important context. You know, we wouldn't look at a law that bans abortion at 15 weeks as something

that just came out of the sky. We would understand it as a decades-long attack on Roe v. Wade, you know, or, you know, a challenge to the Voting Rights Act. You know, these are things that have been litigated over decades and are part of broader strategies to erode those protections. And ICWA is similar. In the past decade, ICWA has been challenged more times than the Affordable Care Act because these lawsuits, most of the lawsuits didn't go

anywhere, though, that actually the small group of people who've strategically brought these lawsuits have had a really hard time even just establishing standing, which you need for a court to even like take your claim seriously. And so this case is that the fact that they got it to the Supreme Court is huge. And it's kind of the furthest a case has gone. And so it's a really odd group of people. And I think there's not one reason why the folks are attacking ICWA. And the three groups that we really investigated were private adoption attorneys and really the private adoption industry, as represented by certain lobbying groups, corporate lawyers, and a universe of right-wing organizations led by a think tank in Arizona called the Goldwater Institute. The private adoption industry, like most industries, fights regulation and ICWA regulates private adoption. And so that one's not that, you know, surprising or shocking.

Any like a lot of these groups like the American Academy of Adoption Attorneys, they have also taken public stances against other laws that make less children available for adoption. And I think that's one thing that's hard for people to understand. We have this stereotype in our country that, you know, there are all these children that need a home and adoption is solving this problem. And actually, the problem within the world of adoption is opposite. There are more people who want to adopt than there are babies that are available for adoption. And what our reporting found, which I think is additive to that, is that adoption agencies are starting to use foster care as a place to find adoptable infants. And that's actually how this case originated. It was, you

know, three foster families who didn't want to foster and didn't want to have a child for six months or a year and then return that child to a kinship placement. They wanted to adopt that child and fought to adopt that child. The second group is corporate lawyers. The main person being this law firm called Gibson Dunn. And the lead attorney on this case is a man named Matthew McGill. And so he's been part of challenges to the ICWA since the beginning. His wife was actually one of the lawyers that worked on the Baby Girl case in 2013. And what we found when we looked at Matthew McGill and we looked at this other lawyer named Paul Clement is that the two arguments that they're making in these ICWA cases, that ICWA is racial discrimination and that it

violates states' rights, are both constitutional arguments that they've made against Indian gaming and to try and attack tribal gaming and tribal casinos. And what's super fascinating is actually we haven't included this in the podcast is in January, Gibson Dunn with Matthew McGill sitting second chair and people who are like complete Supreme Court geeks will know who Ted Olson is. Ted Olson being the lead litigator. Gibson Dunn filed a lawsuit trying to get rid of the Indian Gaming Regulatory Act on behalf of one of their casino clients saying that it is racial discrimination and that it violates states' rights. You know, a lot of Native lawyers and legal scholars and advocates were saying these challenges to ICWA are really just a stalking horse for a broader challenge to federal Indian law and to tribal sovereignty and the rights of tribes. And there's a lot of money to be made, especially, you know,

tribes actually control about half of the gaming revenue in the United States. There's a lot of money to be made if you can attack Indian gaming. And so I think that people were saying what, you know, the type of lawsuit that Gibson Dunn has already filed would come after these challenges to ICWA. And, you know, we've already seen that. And then just real quick, the last group is a group of right-wing organizations led by a think tank out of Arizona called the Goldwater Institute. Early on in the challenges to ICWA, Goldwater was bringing active litigation. And now it looks like they're doing more like amicus work. And so we try to find out like who paid for Goldwater to attack ICWA

and why. And we found it was actually the Bradley Foundation, which is a right-wing family foundation that has funded a lot of right-wing work. And it was part of an RFP that they put together to build what they called conservative state infrastructure. And what they wanted to do is build a network to bring strategic conservative litigation the way that like ALEC or SPN helps bring conservative state legislation. And so ICWA fit into that world and that orbit, which as me as a journalist, I was surprising because I thought it would have something more directly to do with tribal sovereignty, but it was about building conservative state infrastructure. So that's kind of the landscape of the people who are

attacking ICWA and what their various interests are. So fascinating. And there's a lot more kind of explication of all of this in season two of This Land, which listeners should check out. Do you maybe want to say like another little bit, Rebecca,smic for the idea of tribal sovereignty if the Burkina litigation is successful with respect to ICWA. Could you say a little bit more about, you know, what the actual significance could be? Yeah, I mean, I think it's really important that people understand it. You know, legal scholars and tribal leaders have been saying this for years, that these challenges to the Indian Child Welfare Act are an existential threat to tribal sovereignty. And to understand how, you have to understand how what's called federal Indian law works. And so

people are saying that, you know, it's unconstitutional to treat a Native child differently than a non-Native child when that child enters foster care. And that it's unconstitutional to treat a Native foster family different than you would treat a non-Native foster family and that it's all based on race. political status because ICWA very explicitly actually just applies to children who have that relationship to a tribe, to a native nation. And it's based on that nation's relationship to the United States. And so the U.S. has signed over 300 treaties with tribes. And in a lot of those treaties, there were promises of protection, of, you know, health care, taking care of our children, education. And so these things like IHS, Indian Health Services, or ICWA flow from what people call that trust responsibility that the federal government has to tribes. And so there's actually already been a whole host of litigation about it, kind of the same, you know, at the same time people were attacking affirmative action, they kind of came after this aspect of federal Indian law. And what

courts have decided so far is that when it is about that trust relationship, it's not based on race. It's based on the political status of tribes and tribal citizens. And so if ICWA is unconstitutional because it's based on race, well, what does that mean for every other law that protects the unique treaty-based rights of tribes? Like, why can I go to the hospital in my town or the clinic and get seen, but if you're not a tribal citizen, you would be turned away? Like, how is that constitutional if ICWA is unconstitutional? I mean, what racial group gets to have their own police force and their own court systems and their own government and their own land and water rights? You know, I mean, so it's case scenario is that this case is sort of a

thread loose on a sweater that could get pulled to unravel the whole thing. And just to give one specific example of this, you know, people have been rightly celebrating the reauthorization of the Violence Against Women Act. And, you know, what people might not know is, you know, there was a legislative response called the Duro fix in which Congress enacted a law that relaxed the restrictions on tribes authority to prosecute the members of other tribes. And so if, right, Congress can't pass a law that authorizes, you know, tribal governments and tribal courts to hear cases in which, you know, a member of the tribe has been victimized by someone else, like that is going to greatly affect the safety on reservations, tribal sovereignty. And so like, that's just a specific example of a domino that could fall, you know, from this legal theory. Yeah. And people already challenge, I mean, because who, if you are Native and you commit a crime on tribal land,

who has jurisdiction over you is different than if you're non-native. States don't have jurisdiction over Native people on Native land. And there are already tons of cases where defendants are trying to challenge that. And so, I mean, it's not, you don't have to kind of go that far to see that it would have these huge and broad implications beyond just the Indian Child Welfare Act. And I think, too, it's just important, just a side note, to say that ICWA is still needed. So one more question for you, Rebecca. Are you going to do more episodes as the court hears argument in this case next fall and then decides it probably sometime in early 2023?

Yep, that's the plan. So if you haven't already subscribed to This Land, you can subscribe anywhere you get your podcasts, and then you will get those update episodes as the Supreme Court hears the case. Fantastic. And we hope you'll come back and talk to us again. Yeah, thank you so much for having me.

Thank you so much for joining us. We really appreciate it. So once again, listeners, do yourself a favor and check out This Land if you haven't already. The season is essential listening as the cork gears up to hear Brokeen. It is also a triumph of compelling narrative podcasting. And now we are going to take a quick break. And now back to the show. Okay, well, I think we peaked at the beginning of this episode, but there is a lot more to cover. So we are going to press on. So we'll begin with the news. We have some not surprising, but still extremely disheartening news about the Texas abortion law SB8. Leah, start us off.

Sure. So as we predicted, the Texas Supreme Court has boom lawyered us. The Fifth Circuit Court of Appeals, you may recall, is hearing the abortion provider's challenge to SBA, the law that prohibits abortions more than six weeks after a person's last period. The case is on remand from the Supreme Court. So after the Supreme Court decides the case, they send it back to the lower courts for a resolution consistent with the Supreme Court's opinion. That's what's called a remand. So after that remand, the Fifth Circuit certified a question to the Texas Supreme Court that is asking the state Supreme Court to answer a question about the meaning of state law. Here, of course, the state law was SB8.

So the question the Fifth Circuit asked the Texas Supreme Court to answer was whether licensing officials have authority to discipline doctors or nurses who perform abortions in violation of SB 8. It was based on the idea that state licensing officials did have some authority to discipline providers that Justice Gorsuch, writing for the court, said that providers, the plaintiffs in this case, could sue those officials. So now the Fifth Circuit went ahead and asked the Texas Supreme Court, which is the definitive final interpreter of state law, whether the licensing officials do have the authority to discipline the providers. And the Texas Supreme Court came out with its opinion and it said, no, they do not have the authority to discipline providers. So what does this mean? In brief, providers can't sue anyone to enjoin the law

that is to stop it from being enforced, since the Supreme Court, in the same opinion that allowed that these licensing officials might be sueable, also said providers couldn't sue clerks or the attorney general or state judges. So this litigation is done. I mean, I guess the question is what remains. We still have the United States lawsuit, which is in a state of perpetual limbo in the Fifth Circuit, right? The Fifth Circuit put that case on hold. We'll presumably hear oral argument at some point in the future, but it is painfully clear that no one in Texas or the Fifth Circuit is in any rush here, despite the fact that we are now well beyond the six-month mark of the essential elimination of abortion rights in the state of Texas. There are also individual suits pending in state court. So there is not no potential legal challenge still ongoing, but the big one is done. So NPR had a story, now that again, we are in this world with

SB8, about some of the effects of the law, and specifically about how a Texas woman was put on an emergency flight to Colorado in the middle of a miscarriage in order to save her life since Texas doctors didn't know whether they could provide her with life-saving care without violating SB-8. So a horrifying story, and I am sure there are many more going unreported and many more that are yet to come. I think the ruling is and should be additionally concerning. That is, you know, what this Texas Supreme Court ruling did was truly, truly slam the door to at least this big style of provider challenge to SB8.

So it slams the door to challenges to laws that set up these sorts of vigilante justice schemes. And I think that's really, really terrifying, even outside of Texas for a couple of reasons, right? One, some states are now emboldened by Texas attempting to go further, right? Attempting to prohibit people from going out of state to obtain abortions. Texas has functionally prohibited abortion within the state of Texas, but has not, at least not yet, sought to prevent pregnant individuals from leaving the state to obtain care. And many, many people have done that. So Missouri has a bill pending on this. So what if Missouri decided to enact an SB-8-style procedural mechanism to prevent out-of-state travel to obtain abortions? And the structure of the law, the SB-8-like structure of the law, meant that however unlawful such a state law might be, nobody could

find a state official to sue to successfully get a court to enjoin it. And, you know, a bunch of other states are considering other extremely draconian restrictions. You know, some states are considering whether to ban abortions in cases of ectopic pregnancies, which are not viable and are life-threatening to the people who are pregnant. And Missouri has a bill that would do this. Some states are enacting 30-day bans. The Oklahoma Senate passed one. And again, what if all of the states just structure their laws with that weird Texas SB-8 enforcement mechanism, and you can't get a court to do anything about them? That is what the Texas Supreme Court decision, that's what the US Supreme Court decision has potentially unleashed on the country. Yeah. And so while we are waiting for

the Supreme Court and Dobbs to most likely overturn Roe, states are already like 10 miles ahead, right? Like they are going much, much further than a 15-week ban. And the ingenuity paired with sadism is really something to behold in terms of what is emanating from state legislatures. Did want to flag the rare instance of a correct Fifth Circuit opinion, right? They're extremely rare, but maybe worth flagging when they happen. They managed one. So this is a case that you talked about in the preview of the EPA case you did. A Louisiana district court issued a truly deranged order even for district courts in the Fifth Circuit, which is really saying something. But basically at issue was this federal government policy that agencies should consider the social cost of carbon as part of their cost benefit analyses. This had been like an Obama initiative. It was shelved during the Trump years. It was revived by Biden. So Louisiana sued. And in an opinion that a colleague of mine described as literally the worst opinion he had ever read, and he's been a law professor for quite some time,

and that's like on every single point of law, the district court ruled that agencies could not consider the social cost of carbon across a range of activities. So thankfully, this was too much even for the Fifth Circuit, which reversed. Now on standing grounds, so the court actually couldn't correct the many other errors in the district court's opinion. But you know, the very, very rare credit where credit is due to the Fifth Circuit, even the Fifth Circuit wasn't on board with what this Louisiana District Court had done. But don't worry, that was not a liar. So the Fifth Circuit was back in its usual form in litigation that involved several naval officers, including some Navy SEALs who object to the Navy's COVID vaccine mandate. The Navy has got lots of vaccine mandates, but it's, of course, the COVID vaccine to which these officers object.

They filed a lawsuit arguing that this mandate violates both RFRA, the Religious Freedom Restoration Act, and the First Amendment's Free Exercise Clause. So several different district courts have barred the Navy from enforcing its vaccine mandate against its officers and have barred the Navy from taking vaccine status into account in personnel decisions. The Navy says this is an enormous intrusion into military affairs. And the Fifth Circuit, you know, declined to disturb the ruling out of Texas. There's a separate one out of a Florida district court. And about a week ago, the Navy asked the Supreme Court to stay the district court injunction and the plaintiff's response was filed in the court a couple of days ago. We will see what the Supreme Court does with it. I mean, I personally find it more than a little concerning

that as Russia continues its brutal war on Ukraine and like who knows what the future of U.S. involvement looks like. We right now have individual district court judges dictating military personnel policy. One of these plaintiffs is a destroyer commander. And my understanding is that the ship that he commands is basically useless because one of these court orders prevents the Navy from removing him. But I don't think the Navy leadership wants him commanding this destroyer. And like the stakes are really high here. And these single district courts are essentially like, commandeering military personnel policy. So we will see.

I mean, I feel like the Supreme Court is gonna step in, but... I'm just like, imagining these district courts, like, kind of in their little military outfits in chambers, having a bunch of like stuffed animals around them and telling their law clerks, like, these are my awards, clerks from the army, like Buster Blues. Or literally like playing Battleship. I know, it's-

Yeah, and yet it's deadly serious. Like it is so serious. Yes, no, it is terrifying. It has echoes, as you had kind of suggested, of David Knoll, Professor David Knoll of Rutgers, his epic tweet about NASA and the asteroid in which he joked that if there was an asteroid hurtling toward Earth and NASA was trying to do something to prevent it, the Supreme Court would be like, oh, well, maybe we need to stay NASA's attempt to end this asteroid know, this asteroid that is going to, you know, end all of Earth, because that would be like a major question. And this is, you know, district courts being like, yeah, you know, not sure you need those battleships, destroyer commanders, Navy. We have some ideas about that. When you put it that way, now I'm worried that Neil Gorsuch, like, is going to take a look at this and just sort of say, like, no, yes, the Constitution is a suicide pack.

And, you know, so we're going to vindicate what these vaccine objectors do. Give me another marshmallow. And it's going to be the one that is going to destroy the earth and military readiness. So let's do it. But we'll go down clutching the Constitution. So we'll have to do it. In happy news, we got a super exciting opinion that was maybe the best welcome back gift from spring break I could imagine. So I was debating whether I should just stay in Miami sipping mango mojitos for the rest of my life. And, you know, what persuaded me to come back was Justice Kagan released an opinion about the Armed Career Criminal Act in which the

defendant won and the sentencing enhancement was rejected. So regular listeners of the podcast are probably familiar. The Armed Career Criminal Act, or ACCA, imposes heightened penalties for people who are convicted of unlawfully possessing a firearm if they have multiple convictions for violent felonies that are committed on different occasions. So the question in this case is what counts as a different occasion? Does it mean something that happens at a different moment in time? Or does it mean something separated by more than just, you know, a second? So on the facts here, Mr. Wooden burglarized 10 units in a single government says, those are 10 different felonies. So you actually have 10 convictions for violent felonies. And just to make the scene clear,

like I think he's just like breaking through drywall. Like it's one long hallway with these like mini storage units and he's going one by one by one. And yet the government says these are 10 distinct crimes. And if it's one crime versus 10 crimes, that makes an enormous difference in terms of the length of sentence that he is going to get. So as you mentioned

at the outset, Leah, the court unanimously rejected the government's interpretation that these were 10 separate crimes and sided with Wooden. So for you, this is like Christmas, Hanukkah, birthday, everything came early. Leah loves nothing more than the Armed Career Criminal Act when a criminal defendant wins and in a unanimous opinion, and Justice Kagan writes it. So it had all the things. So her majority opinion concluded, actually, I don't want to say you love the Armed Career Criminal Act. Nobody loves the Armed Career Criminal Act. How do I? But just to underscore the stakes here, as you were suggesting, if the burglaries of the storage units count as one crime, the statutory maximum punishment was 10 years, and the punishment range is like zero to 10 years. Whereas if it counts as 10 distinct

felonies, he will receive a minimum sentence of 15 years. So he has to be sentenced to at least 15 years. So those are the stakes, and that's why this sort of designation is so important. And Justice Kagan's majority opinion concluded that occasion here means an episode or event in its ordinary meaning, and that the structure of the Armed Career Criminal Act, as well as the clause's history, reinforced this point. Notably, Justices Thomas, Alito, and Barrett didn't join the section of Justice Kagan's opinion that relied on the history of the statute and its purpose. I was curious about this because Justice Alito didn't join that section of the opinion when it relied on statutory history and purpose. Is he

like cosplaying a textualist? Like since when does he care about all of that formalism? It was just super strange to me. He doesn't at all. Yeah. I mean, Barrett is like, you know, Barrett is sort of developing an identity on statutory cases and is obviously very self-consciously styling herself after her former boss, Justice Scalia, who very famously, you know, and sort of performatively would withhold his agreement with like minute little sub parts of opinions that made reference to legislative history, occasionally even statutory history, like what earlier versions of the statute looked like. Here it was mostly statutory history and purpose, although there's like one reference to a piece of like classic legislative history.

And I guess for Barrett, although she explains in a separate writing sort of why that's a bridge too far, but I totally agree. I was like, Alito, you don't care. Like, stop pretending you care. I think he was having a strange moment here because not only is he cosplaying a textualist, he cosplayed a textualist who voted for the criminal defendant, which like never happens, so rarely happens. I mean, it's hard to think of a more devastating indictment of the Biden Solicitor General's, the federal government's position than they lost Sam Alito in a criminal case. Their position is so extreme, so outlandish, they couldn't even get Sam Alito to vote for the government and against a criminal defendant. It's... As you say that, I wonder, there's so much discussion in the Kagan majority opinion

about the federal government's confession of error in a previous Armed Career Criminal Act case, so a case in which the federal government ended up basically, you know, changing positions. Like, in a subtle way, was she just like, you really should have done that here, federal government? Like, what you should have done is confess error because you had an indefensible position? I mean, it's possible, although, you know,

the confession of error did precipitate the statutory amendment. So it is, you know, very much part of the history here. But yeah, anyways, the opinion, you know, as you're suggesting, has the typical Kagan flair, you know, in describing why the majority concluded that an occasion meant an episode or event rather than mere timing. She says, consider first how an ordinary person, a reporter, a police officer, yes, even a lawyer, might describe Wooden's 10 burglaries and how she would not. In the footnotes, she has a nice zing in response to Justice Barrett's separate writing in which she says, contrary to Justice Barrett's characterization, we do not claim that Congress ratified every jot and tittle of the Solicitor General's brief confessing error in that case.

As you've alluded to, it was both unsurprising to me, but also a little dispiriting that Justice Barrett has decided to stake out these just very hollow, wooden, formalist approaches to statutory interpretation that ignore history and context, wooden, formalist approaches to statutory interpretation that ignore history and context, but, you know, expected. And that's what she did in her separate concurrence is, you know, she agrees with the bottom line. But it's an oddly sharp tone for a concurrence. And she sort of seems to be scolding Justice Kagan for her, she says, sort of, you know, undue and unnecessary reliance on this previous history in which she says, you know, Kagan reads the amendment that you mentioned that was in response to this confession of error as ratifying the Solicitor General's position.

And she says it's, you know, there's gonna be a real problem because future courts are going to like scrutinize this SG brief that you elevate to this sort of undue level of importance, Kagan. But it's just like, I think that's just coming on a little spicy for somebody as new as she is with Justice Kagan in a majority opinion. I was really surprised by the tone of that concurrence. It's not even spicy. It's just like, hostile yet boring, like very strong Dolores Umbridge vibes. If we're going with the Harry Potter. And, you know, Justice Kagan is still the Hermione. And it's just, ugh. Yeah. You're right about boring.

Like, there's just not really any interesting flair. So it's like, there's a cattiness to it, but it doesn't have, like, the flair of a Scalia opinion. So this attempt to channel Justice Scalia with basically no flair, I just feel like it's not working. I think you need to try something different. Yeah. Yeah. So let's pivot now to do some previews of the cases the court will hear during the March sitting. Let's do it. Okay. So the court is hearing several arbitration cases. Maybe let's intro that kind of category of cases, and then we'll talk briefly about each of the three. So first, what is arbitration? Arbitration is a private form of dispute resolution, basically a legal claim or claims get resolved outside of courts through an informal process called arbitration., to arbitrate legal claims you have rather than suing in court.

And the agreements might, in addition to requiring arbitration, place lots of additional restrictions on what those arbitration proceedings might consist of and look like. So why is arbitration potentially concerning? For one thing, it can make it difficult to enforce certain laws and protect certain rights, such as small value claims like wage theft. If one of those additional restrictions in your arbitration agreement is you're not allowed to aggregate different claims together, that is, sue on behalf of yourself and others. That can make it difficult to enforce low-value claims. If the cost of bringing a claim is greater than the amount you would recover if you won your claim, then you might not bring the claim at all if your arbitration agreement doesn't allow you to bring collective or class-wide arbitration proceedings.

The lack of transparency and no reported decisions can also make it harder to uncover misconduct and remedy it. Allegations of discrimination or harassment won't be public, and that can make it more difficult for plaintiffs to convince juries that they were subjected to discrimination or harassment or misconduct if they're not able to point to multiple instances of misconduct or a pattern of behavior. And it's in part for that reason that Congress enacted and the president recently signed a federal statute that limited mandatory arbitration in claims or cases regarding sexual harassment or sexual assault. And the Supreme Court,

in a series of cases, has made it quite difficult to challenge abusive, coercive arbitration agreements that make it difficult to enforce federal law and to remedy misconduct. All right. So the court, as we mentioned, is hearing three different cases this sitting that are about different aspects of sort of law and arbitration. So the first of these is a case called Viking River Cruises versus Moriana. And, you know, this is the latest in a long line of cases involving the relationship between the Federal Arbitration Act, that is the FAA, and state law. So the state law here is a California labor law that contains a Private Attorney General Act, or PAGA. So that act allows private individuals to bring suit on behalf of the state to recover civil penalties also on behalf of the state.

So the law is, as California describes it in its brief, a really important part of California's labor law enforcement scheme. And that's particularly true when it comes to ensuring lawful treatment of some of the state's most vulnerable workers. So the state in its brief explains that especially in the context of agricultural workers, garment workers, frontline workers, the state simply doesn't have the resources to aggressively enforce its labor laws. And so it relies very heavily on this citizen suit or PAGA provision. So the way it works is under PAGA, aggrieved employees are authorized to act as the state's agent. And if they get recovery, 75% of the penalties go to the state labor and workforce development agency, and 25% are distributed to aggrieved employees. Other employees actually aren't bound by the judgment. If they want to sue their employer, they just can't seek additional

civil penalties. So this works a lot like a key TAM action in the federal system that exists as part of the False Claims Act. So this is not something super a key TAM action in the federal system that exists as part of the False Claims Act. So this is not something super unique in the law, but it's an important part for California of its scheme of labor law enforcement. So the plaintiff in this case was a sales representative for Viking River Cruises. She alleges that she and other sales reps were subjected to multiple labor code violations, but her employment agreement prohibited her from pursuing any of these private attorney general claims, in addition to requiring arbitration of claims

by the employee against the employer. So when she tried to initiate the PAGA action, the defendant employer said, aha, this provision in the contract means you're required to arbitrate claims against us. And the Federal Arbitration Act, that doesn't allow a state to say, but employers can't prevent employees from pursuing claims under the Private Attorney General Act because that would undermine the enforceability of the arbitration agreement. So just to say that again, because the reasoning in these cases is a little confusing. So the defendant employer says you're required to arbitrate claims against us. And because of that, you're not allowed to sue us under the Private Attorney General Act because this federal statute says states must enforce arbitration agreements. They can't invalidate them. But the

plaintiff in the case says, look, the Federal Arbitration Act is just about enforcing agreements to arbitrate a claim by a plaintiff against a defendant. But this suit is something different. It's a suit basically on behalf of the state against the employer. And so this agreement is not about enforcing my agreement as an employee to arbitrate claims against the employer. It's effectively attempting to prohibit a state from enforcing its laws against the employer. And the Federal Arbitration Act just doesn't have anything to say about that. That strikes me as like an eminently reasonable distinction. But you know, that doesn't necessarily mean the employee is going to prevail. And that's in part because of how

stunningly atextual and unmoored from the text the Supreme Court's arbitration jurisprudence about the Federal Arbitration Act has become, which I feel like I should note slash give a plug about our recent episode with Carrie Franklin, you know, about the Supreme or this state common law doctrine undermines the purposes of the Federal Arbitration Act, not that it's prohibited by its text, but just it undermines the purposes of the Federal Arbitration Act. And the court reads the purpose of the Federal Arbitration Act to basically mean everyone is required to arbitrate all claims all of the time. And I feel like there's a non-zero chance here that the court is going to similarly hand wave and be like, well, but the vibe of the Federal Arbitration Act is that laws can't be enforced against corporations when corporations don't want them to be enforced against us, and they make agreements with their employees and coerce them into signing arbitration agreements.

I think that's right. I think that like the FAA body of law in which the court basically says no matter what the state law does or says, and regardless of sort of how little the FAA actually itself even says, it's always the case that a state law is preempted by the Federal Arbitration Act. And like, it was kind of like the body of law that was basically vibe based under the FAA, I think was like actually the canary in the coal mine for like a larger era of vibe-based jurisprudence, because they've been doing this for a long time. And they're amazingly atextual decisions, as you just said. But the general idea is there's a purpose to promote arbitration, and that purpose to promote arbitration is enough to preempt any state law to the contrary. And so, yeah, I mean, probably that's how this one goes down too, but like, it's pretty lawless. Yeah. And Sam Alito is going to be like

screaming at California about how they're trying to cancel arbitration and the Federal Arbitration Act prohibits cancel culture when it's directed at arbitration. And, you know, that's pretty much how I see this argument going. I mean, honestly, like at this point, it might not be any less atextual if Sam Alito starts suggesting that actually it's the Voting Rights Act, which prohibits California from attempting to enforce its Private Attorney General Act. Because what the Voting Rights Act actually does is require arbitration of all claims. It doesn't actually prohibit Alabama from diluting the votes of black Alabamians. Like, we're not so much concerned about the text. But really, if you think about the purpose of the Voting Rights Act, Kate, it is to require arbitration and immunize corporations from lawsuits is the conclusion I've come to. Yeah. Or like another different mashup,

which is just like the preferred method of deputization of private citizens is to harass individuals who like need to pursue abortions rather than to actually alert the state authorities about wage theft and other abuses of workers. I don't think California got the memo that that's the kind of private enforcement the Supreme Court approves of. Exactly. That's good private enforcement. This is bad private enforcement. This is cancel culture. This is vigilantism gone too far. Too far. This is pitting citizens against one another. This is undermining civility. And really the rule of law, by which I mean the purposes of the Federal Arbitration Act. AKA the rule of law. That's usually what we mean when we say the rule of law. Yes. Okay, we got it. We think we've predicted the entirety of the rule of law. That's usually what we mean when we say the rule of law, the FAA. Okay, we got it. We think we've predicted the entirety of the trajectory of this argument and probably

the opinion. Cool. All right. And people say we're of no help to Sam Alito. We basically rewrote the opinion for him. On a serious note, I did want to flag that my Cardozo colleague, Miriam Gillis, who's like an amazing scholar of all things arbitration and many other things, has a great amicus brief in the case, along with some other arbitration and civ pro scholars. So check that out if you're interested in the case. Okay, so let's maybe just... If you're interested in law, which, you know, not law.

Or vibes, either one. No, no, law, Miriam will do the law. You and I can cover vibes. Okay, cool. I got it. Got it. So we'll just maybe briefly mention the other two arbitration cases. The first of the two is Southwest Airlines versus Saxon. So briefly, the FAA, you know, beyond its vibes, it has some words, and it exempts, using some of those words,

workers engaged in foreign or interstate commerce. The issue in this case is whether the statute or that exemption applies to workers who load and unload cargo from airplanes. So the case really implicates the Supreme Court's prior decision in Circuit City v. Adams, which was a 5-4 decision in which the court held that the exemption really only applies to people working in transit of goods or transportation workers. And the question here is whether that exemption also applies to individuals who load and unload cargo from airplanes. I think this case will be argued by Carla Gilbride, who is a terrific appellate lawyer and on many Article III shortlists. So I will look forward to listening to that oral argument. And the third arbitration case the court will hear is Morgan v. Sundance.

So in that case, the company, after being sued, filed a motion to dismiss the case. After losing the motion to dismiss, the company raised some affirmative defenses and attempted to settle. And only when that failed did they seek to require the plaintiff to arbitrate the case. And the question is basically whether the company raised the arbitration agreement too late in the proceedings to enforce it. The court is also hearing some non-arbitration cases, and we will flag two of them. One is Torres versus Texas Department of Safety. This is a super wonky federal courts issue, and it's about whether Congress can authorize suits against states when Congress is exercising its war powers. I think the case and the issue is super fascinating. It also pits two things that conservatives seem to have like an affinity for against one another. One is war and the idea that, you know, the federal government, when it is exercising war powers, can just do a bunch of things slash everything. And the other is the idea that states cannot be sued without their consent.

And so it's just unclear which principle is going to kind of carry the day here. Totally fascinating case. The third case we wanted to flag is called Berger v. North Carolina NAACP. And the case involves a challenge to North Carolina's voter ID law. So briefly, after the legislature enacted this law in 2018, the state conference of the NAACP filed a lawsuit arguing that the law violated Section 2 of the Voting Rights Act, among other things. So even though the state board of elections and the state attorney general were defending the law, the GOP-controlled North Carolina legislature tried to intervene to also defend the law, presumably because they thought the Democratic attorney general wasn't going to defend the law to their liking. The lower courts ruled against the legislature and its

attempts to intervene, and the case is now before the Supreme Court. And this case is part of something of a trio this term. So like Cameron, which was the case involving the Kentucky attorney general's efforts to intervene to defend a state abortion law, and listeners may recall he was recently successful in the court. And also the case you and I previewed, Leah, in which the Arizona attorney general is trying to intervene to revive a rescinded Trump administration immigration rule. This case is ostensibly about standards for intervention, right? Like when a non-party should be able to participate in litigation. But they're all actually efforts to inject

partisan politics into litigation. Basically, red state officials, or like red officials in purple states, because these tend to be states that are somewhat divided politically, are trying to get into court to make maximalist arguments that they think other, you know, political actors are not going to make to their liking. And, you know, at least in the Kentucky case, that's been a successful effort in the court this term. So we will see how this case fares and we will cover, you know, this case and other cases that we just previewed in more depth on future episodes. Okay. So those are brief previews. We will cover some of these cases more in depth on future episodes, but we did now want to return to news and more news because the court is just all over the news these days. We'd be remiss not to mention the big piece of Supreme Court news,

which is that this week we will have the hearings for Supreme Court nominee Judge Kataji Jackson. We will have a special episode for you on those hearings next week. But for now, some additional news. So we might make this a recurring segment. At this point, it kind of is a recurring segment because there is a lot to say and a lot of shoes continue to drop. But we have some updates on our Ginny Thomas watch. So one, we now know from Ginny Thomas herself that she did, in fact, attend the rally that preceded the riot at the Capitol on January 6th.

So from a Free Beacon report, I will quote, she did not help organize the White House rally that preceded the riot at the Capitol. That's clearly how she wants to lead the conversation. But the second sentence seems actually more important to me. And the second sentence is she did attend the rally, but then got cold and left early. Thomas told the Free Beacon that she was in the crowd

at the Ellipse rally for a short time on the morning of January 6th, but returned home before Trump took the stage at noon. We didn't know that she was physically there. That's an enormous piece of news. Sort of, you know, clearly the I got cold and left is what she thinks is important about the story. The I was there is what I think is important about the story. I agree.

Not just shit posting on Facebook, doing the actual insurrecting, right? Getting out there, but apparently not sufficiently bundled for the cold and then heading home. There's more to learn about that. But anyway, so that's a significant development. She also, in that same interview, talked about how her work and her views did or didn't become intermingled with Justice Thomas's. She says her conversations with Justice Thomas about cases are very general. Not non-existent. They happen. She does say the legal lane is my husband's. We do not discuss cases until opinions are public. And even then, our discussions have always been very general and limited to public information. It's so interesting that she clearly feels a little bit of heat from all of this reporting on her activities because she was staying silent and she is not doing it anymore.

And I don't think the reporting is done either. So I think we probably are going to need to make this a recurring segment. Well, we also learned that it is apparently feminism that is making Ginny Thomas breach these ethical lines and do a little insurrecting because the interview that you mentioned, the story in the Free Beacon, contained a quote from Judge Silberman, a senior judge on the D.C. Circuit who we will be coming back to. And Judge Silberman says, if you did a study of all federal judges today to find out whether their spouses are involved in politics, you'd find a plethora. These concerns no longer apply. Feminism broke it down. This is like the next level of feminism beyond the Dobbs argument. So we're on like fifth dimension federalism. I did it again.

Fifth dimension feminism at this point where it's like, okay, feminism now means like we no longer need abortion care. It also now means we can breach ethical lines. So what will feminism allow me to do next? We are the real anti-feminists in constructing this recurring segment and criticizing Ginny Thomas for her questionable adherence to ethical lines. This is true. Why do you hate women so much, Kate? I think that's actually the conclusion, the only reasonable conclusion to draw, both from Ginny's activities and from our criticisms of them. She is the true feminist.

Yeah. We're not. Cool, cool. All right. So perhaps related, perhaps not. Who knows? Their conversations are only ever very general, as we learned this week. Justice Thomas gave a speech about what else cancel culture at an event in Utah hosted by former Republican Senator Orrin Hatch.

So at that speech, Thomas criticized cancel culture and also court reform, suggesting court reform proposals are the ultimate cancel culture. Love it. I mean, that's also fifth. That one might be the fourth dimension fed courts, maybe? Yeah, yeah, yeah, yeah, definitely. Maybe I will finally get to say fourth dimension federalism, right? Which is you can never criticize the Supreme Court. Or that's cancel culture. Right, exactly, exactly. This is cancel culture. This podcast is cancel culture, apparently. So speaking of cancel culture, the following email was sent to a series of listservs and groups that apparently in the aggregate included all of the federal judges under Article 3. I did not know there was such a listserv. So there apparently isn't a singular one, but there are different groups.

Oh, he compiled? Okay, yeah. He compiled down and put a ton of different addresses in the two fields? Sorry, I'm getting ahead of the story. Go on. Who is the he and what did he do? The he is feminist himself, senior judge Larry Silverman of the D.C. Circuit. The email begins,

To all Article III judges. The latest events at Yale Law School in which students attempted to shout down speakers participating in a panel discussion on free speech prompts me to suggest that students who are identified as those willing to disrupt any such panel discussion should be noted. All federal judges, and all federal judges are presumably committed to free speech should carefully consider whether whether any students and punish them for what speech and protest maybe feminism is making him do it isn't right when i think about it feminism solved this problem this is a deeply feminism broke it down he's just that he has just sent to his colleagues and all of the article three yeah this is six-way feminism, now that I think about it. Yeah.

Yeah, the subject line was like feminist marching orders. Nobody hire any of the clerk, nobody hires clerks, any of the Yale Law students who participated in this protest. Okay, so we should probably explain what the email is in reference to. So there was an event at Yale Law School where the general counsel of the organization Alliance Defending Freedom, or ADF, which is a group that litigates against LGBTQ equality, trans rights, and more, was speaking. So there are some conflicting reports. The details are a little hazy. I don't totally feel like I know exactly what went down. But the general gist is, before the speaker started speaking and at the beginning of the event, some student protesters in the audience spoke up. A faculty member moderating the event asked them to stop, at which point, seems like they left. There was then apparently

continued noise in the hallway, during which plainclothes officers that Yale Law School had on hand for the event asked them to stop, and they did. That's apparently what precipitated this email. Those are the students that the judge is saying should be disqualified from federal clerkships. And I should note, right before we began recording, Mark Joseph Stern, a writer at Slate, actually posted video of the students saying things at the beginning of the event, as well as the noise in the hallway afterwards. And I think it's worth checking out because, you know, again, what happened is the students speak up as the moderator is introducing the panelists. And then

the moderator says, like, Yale Law School, right, is committed to free speech. And the students say, are we going to be permitted to ask questions? She says, yes. A bunch of the student protesters then file out. And the event continues. Now, during the event, you can hear, like, protests in the hallway, but you can easily hear the speakers over them, right? So it's probably not their ideal environment, but it's not like this prevented the event from happening or drowned out the speakers. I got to check out that video. I hadn't seen it because I was teaching and then came right to recording, so that's really interesting. And that had been my sense.

Like, this was, you know, this was counter speech, and maybe it made it difficult. Like, maybe it wasn't ideal, but it didn't prevent the panel from occurring at all. It didn't make it unsafe. It didn't make it, you know, not able to hear what they were saying. And just a few notes for that email, that very feminist email. Regular listeners of the podcast might recall the Federalist Society students who literally tried to cancel to prevent another student from graduating after that student sent a satirical poster. And all of those Federalist Society students who, again, attempted to prevent another student from graduating have court of appeals clerkships. And what I think this speaks

to is more generally the state of the federal judiciary who's on the federal court's legal profession, and in particular, like the asymmetric incentives, right? Like, because, you know, the students who organize that event, the students who will be complaining about the protesters, they will have an advantage when they go to apply to federal clerkships. The students who participate in the protest, right, also engaged in speech, they will be at a disadvantage. And Silberman just made sure of that. Yes. We should flag that not every Article 3 recipient of that email was delighted to receive it. an Obama nominee on the District Court of Nevada, who it turns out is a king among men,

after several other federal judges replied all to Judge Silberman's email. And Judge Gordon says, please do not hit reply all. It's very distracting to receive all of these comments when I'm trying to get my work done, and it clogs up my email inbox. Like, you people, like, I'm trying to actually be a judge here. I just appreciate that Gordon actually gave voice to the like, stop replying all instinct that everyone has had from time to time, and deployed in a very righteous context. So I want to move on to our next topic to make sure we have enough time to address it. And that is a recent hearing about misconduct in the federal courts. So on Thursday, March 17th, the House Subcommittee on Courts, Intellectual Property and the Internet held a hearing called Workplace Protections for Federal Judiciary Employees, Flaws in the Current System and the Need for statutory change. As the name of the hearing suggests, the hearing was about a bill introduced in the House called the Judicial Accountability Act. And that bill would, among other things, extend the federal laws that prohibit race discrimination and sex

discrimination and sexual harassment and retaliation and pregnancy discrimination to the federal courts. It would also create an office to receive and investigate complaints regarding misconduct in the federal courts. And that would change the status quo because as crazy as it sounds, currently the federal anti-discrimination protections like Title VII and the Family Medical Leave Act do not apply to the federal courts. And that is even though the federal courts are not bound by the federal laws prohibiting sex discrimination, even though 30,000 people work in the federal courts. So that gap has created a lot of problems. The bill was proposed in part as a response to several high-profile allegations of misconduct against federal judges. And in response, the federal courts held some working groups, created some employment dispute resolution procedures, and that's kind of it. There were and are serious

questions about whether those were good enough. And several witnesses at the hearing spoke to this. So one witness, Caitlin Clark, testified that she was fired from her clerkship after she became pregnant and indeed 10 days before she gave birth. This might be news to the Supreme Court, since I remember them suggesting that we actually don't need the right to abortion care anymore, since there is no longer discrimination against mothers and pregnant workers. So I'm sure they will take note of this. Clark had been hired by a district court judge, and because she was apparently doing such a good job, the judge extended her clerkship term for two years, which she accepted, and offered her a raise in November 2019 and January 2020. Then she told the judge and his staff that she was pregnant. The judge's

career clerk apparently said Clark would never get her work done. Clark alleges the career clerk began giving her more negative feedback, frequently made her pregnancy the topic of conversation, and the judge then called Clark into a meeting at which he told her she was moving too slowly, that she was too stupid or just didn't care, that she lacked the drive and intensity, and said, while clerking may be a good mommy job, work still has to be done. She called the career clerk to get feedback, and the career clerk said, it's infuriating to me. I mean, you're pregnant. And then she was fired. So another witness, Karen Devins Strickland, is the lawyer thus far known as Jane Roe. So she's suing the federal courts and the federal defenders because of the harassment and retaliation that she was subjected to. Leah did a great episode with her lawyer, Jeannie Suk Gerson, and Deva Shah,

a lawyer who filed an amicus brief about Strickland's case last summer. So Strickland's testimony describes how she was subjected to harassment. She tried to report it. She experienced retaliation for doing so, and the truly horrendous procedures that she had to use to do all of this. So federal defenders are subject to the same rules and procedures, or honestly really lack thereof, as federal judicial employees are. So for example, she describes how the first assistant defender assigned her exclusively to his cases and targeted her for unwanted attention. She wrote co-workers described him as lustful, fixated, sexually attracted, wanting me, not such a professional way. One co-worker stated, thank God the attorneys don't have the ability to really undress you with their eyes or you wouldn't be dressed at work. After Judge Kaczynski of the Ninth Circuit retired following allegations of sexual misconduct, the first assistant gloated to her that the process for bringing sexual harassment complaints in the judiciary is useless.

He said he was personally aware of a complaint against a judge that, according to him, was appealed all the way to the top and went nowhere. He then sent her an email that is like a textbook example of quid pro quo sexual harassment, right? Making someone's work experience conditional on their compliance with sexual terms or conditions. So it somehow gets worse from there. So Strickland tried to report to the defender who told her to compromise. The administrative office's fair employment officer said it would be less risky for her to just find another job than to report since under the employment dispute resolution plans, they were stacked against her and that she should just call in sick to protect herself. And she still decided to report. And that resulted in her being placed on telework, none of her witnesses being interviewed and the defender who was accused selecting the investigator.

So that was the process. A couple of letters in the record that we should highlight. Aziz Hook, who's a professor of law at the University of Chicago Law School, wrote a great letter explaining why it is perfectly constitutional for Congress to enact a federal statute regulating sexual harassment and related reforms in the federal judiciary. Deva Shah, who is the author of the amicus brief on behalf of federal judicial employees in Strickland's case, filed several anonymous letters in the record on behalf of clients who wish to remain anonymous. One letter details how

a clerk was subjected to harassment, reported it, and all they got was a finding that they were indeed subject to harassment, but how the courts couldn't do anything about that and how they, the clerk, could never disclose the decision, finding that they were, in fact, subject to harassment. So the clerk writes, the decision found in very clear terms that I had been subject to harassment and bullying that contributed to a hostile work environment. The decision stated that any distributed copies of the decision should remain confidential, although I had never agreed to keep my allegations or the outcome confidential. I also learned that the EDR policy did not empower the officer to impose remedies impacting the chambers of another judge.

It is just like so Kafka-esque what these people are describing. And it is just beyond galling that this is how the federal courts resolve their internal personnel issues. And then they sit in judgment on everyone else. It's just insane. Okay, a couple more things to highlight. There was another letter by Olivia Warren, who testified two years ago about the harassment that she experienced in Judge Reinhart's chambers. She concluded that testifying publicly was a safer option than reporting internally without a confidentiality guarantee. And here she wrote a letter supporting the act and noting that two hours after her testimony concluded, one of the former Reinhardt clerks responsible for sending her into chambers,

right, for her clerkship in the first place, emailed her an apology in which that clerk basically said, every single Reinhardt clerk knows that everything you said is true. Nevertheless, we have all given him a pass because we believe in the rest of what he did. I'm sorry for the role I played in convincing you to take the job and glossing over, justifying, compartmentalizing the mistreatment that I know you would face because every woman in that chambers and many men face it. And Eliza Schatzman, a former law clerk on the DC courts, testified about the retaliation she experienced after she attempted to report sex discrimination and how that retaliation has prevented her from getting a job as a prosecutor.

So I would like to play a clip of Representative Mondaire Jones asking a question of Judge McEwen, a Court of Appeals judge on the Ninth Circuit who was there to testify that the federal judiciary was fixing, maybe had fixed the problem. So let's play that clip here. Judge McEwen, beginning with your confirmation in 1998, you served on the Ninth Circuit alongside So let's play that clip here. him, made sexually degrading comments about them in front of other judicial employees, referred to them as quote slaves, and engaged in other forms of verbal and physical harassment. According to a number of survivors, Kaczynski's misconduct was an open secret across the Ninth Circuit. Did you ever witness Judge Kaczynski act inappropriately in any way towards any of his employees? No, sir, I did not. Let me be clear. Until the allegations became public, you never had any reason to think that your colleague, Judge Kaczynski,

acted inappropriately toward any of his employees? No, I did not. I do not think it's fair to say it's an open secret. I served with Judge Kaczynski over many years. I would acknowledge that he is an unusual personality in his approach. those brave individuals came forward and told our chief judge and various reporters about these allegations of harassment that we had first heard about those. And I might add that as soon as those allegations were made, our chief judge filed a misconduct complaint against Judge Kaczynski. He then called me before Judge Kaczynski had responded or resigned and said he wanted a workplace committee, that we should start our work immediately, which we did. And then Judge Kaczynski resigned. Thank you, Judge. And so in the nearly 20 years you worked with him, you never even heard a rumor that he had done anything like that, correct? I don't know if I would say I've never heard a rumor. I've just heard rumors about antics, but not about the kind of allegations that these individuals came forward with. You also served on the Ninth Circuit alongside the late Judge Stephen Reinhardt from 1998 until his death in 2018. Last Congress, when this

subcommittee held its first hearing on sexual harassment and discrimination in the federal judiciary, Olivia Warren courageously testified about how Judge Reinhart harassed and abused her during her clerkship for him. More than half of Judge Reinhart's clerks acknowledged this behavior and supported Ms. Warren's testimony. Did you ever witness Judge Reinhart act inappropriately toward any of his employees? I did not, and I was certainly shocked to hear the allegations, and I, of course, credit those allegations to the witness. And with that, this hearing has concluded. So Judge McCune sat on the same court for decades as Judge Kaczynski and Judge Reinhart. And she's basically saying, you know, I had no inkling that anything was amiss with Judge Kaczynski.

And for those of you not familiar with the federal courts, I think it is difficult to convey just how ludicrous that statement is. And so I am just going to read what Heidi Bond, the former Kaczynski clerk who went on record to describe the sexual harassment she experienced, what Heidi said, quote, if they didn't notice, it was because they didn't want to notice and didn't want to ask any questions. I truly think there is no more damning indictment a Ninth Circuit judge can make of their judgment and candor than to pretend they had absolutely no idea something was off with Kaczynski. Heidi says, any judge who observed Kaczynski and now tells themselves that they did not know something was wrong is lying to themselves. You may not have known exactly what was happening, but you knew it wasn't good. I think what's so frustrating about this is we're not

asking all of these people to say, like, I'm at fault, right? Like, I deserve punishment because, like, I didn't do anything to stop Judge Kaczynski. It's just we're asking them to be honest. And instead of trying to exonerate themselves and insist, well, I didn't know specifically what was happening, which by the way, isn't what matters. It's just to ask what you could have noticed, or if you did notice anything, like why didn't you feel you were able to do anything about it? Like that is the important question. And those are the difficult questions that we need to understand before we address the problem, because we don't know why various people, judges, professors, clerks,

lawyers, you name it, weren't equipped and didn't feel able to do anything. We don't know what will fix the problem. And it's just stunning that in the face of this testimony, you have federal judges up there saying, I had no idea there were any problems, and this is great. I mean, Judge McKeown described Judge Kaczynski's behavior as, quote, antics. And I want to make clear that Judge McKeown is the judge who obviously cares about addressing sexual harassment. She's a leader on this issue. And if the people who are leaders on this issue are not willing to be more forthcoming and are minimizing the behavior and frankly, calling all of the women who came forward brave and trying to align themselves with them while kind of saying like, well, we had no idea, right? There was nothing we could do.

Like we didn't see anything. It's very problematic. And like this just underscores the problem. And antics was such a minimizing way to describe. Like there was no way, as she was a little bit pressed, there was no way to say like literally I had no idea. But instead there was this like gesture toward like, yeah, maybe something was weird. It was antics. I mean, this was a judge who sent emails to the entire Ninth Circuit about how women lawyers should wear push-up bras, right?

Like, come on, right? Like, just say, okay, yes, I knew, right? It was inappropriate, right? But like, here's why I felt like I wasn't able to do anything. Because if we knew that, we could address it. It just feels like the federal courts have so, so far to go. Yeah. And I just really appreciate Representative Jones for this exchange. I think we need to leave it there. Yeah. All right. So that's all for this episode.

Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Audio engineering by Kyle Seglin. Music by Eddie Cooper, production support from Michael Martinez, Sandy Gerard, and Ari Schwartz, with digital support from Amelia Montooth. See you next time.