Strict Scrutiny - Hot Potato

Episode Date: January 17, 2022

Payvand Ahdout, Assistant Professor of Law at University of Virginia School of Law and federal courts and post-conviction review expert, joins Leah to debrief the first week of the Court's January arguments, an important resentencing case to be argued the second week (attn: Kim Kardashian), and a bunch of court culture that ... isn't particularly upbeat for lady lawyers. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello and welcome to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I am your host today, Leah Littman, and I am delighted to be joined by a guest for today's episode, Pavand Adut, Assistant Professor of Law at the University of Virginia.

So Pavand clerked for Justice Ruth Bader Ginsburg and worked in the Solicitor General's office as a fellow, and she now studies and writes on federal courts, post-conviction review, and the separation of powers. Welcome to the show. I'm really glad to be here. I listen all the time, and it's surreal being on the other side of the podcast. You will get to see how the sausage is made. And now you know it's kind of a fly-by-the-seat by the seat of your pants operation. And here we are. So today we are going to cover some recaps of cases the court heard this past week, as well as note an opinion announcement we got in addition to the vaccination cases. We will also do a little bit of a deeper preview on one of the cases the court will hear this upcoming week. And at the

end, we will provide some coverage about what is happening in the U.S. Court of Appeals for the Fifth Circuit on the SB-8 litigation, as well as some other things too. So you ready for this? I'm ready. Let's do it. That was my attempt to incorporate a Taylor lyric into the episode. So we got an opinion this week in one of the cases other than the vaccination ones, and that was in Babcock versus Kijikaze. This is an 8-1 decision by Justice Barrett with Justice Gorsuch dissenting about civil service pension. So the Social Security Act reduces benefits of retirees who receive payments from separate pensions based on employment not subject to Social Security taxes. But benefits

aren't reduced by payments based wholly on service as a member of a uniformed service. So here the Supreme Court read that exception to not apply to civil service pension payments based on employment as a dual-status military technician. Dual-status military technicians are employees who provide technical or administrative assistance to the National Guard. So this decision rested a lot on Justice Barrett's interpretation of the word as. This follows on her decision in last term, Van Buren versus United States, members' Social Security benefits based primarily on an implication extracted from other bookkeeping statutes. So I don't know if you monitor opinion announcements as kind of compulsively as I do, but they announce they're going to release opinions on Thursday and everyone's like, is this the OSHA case? Is this a test and vax case? And I teach until 1010 on Thursdays. So at the end of class, I'm like furiously checking my phone and it's like, nope, just bad cock.

I definitely refresh, but nobody sort of waits with the sort of anticipation that you wait for these decisions, I think. That's probably right. And my anticipation will only increase once we add the first sentencing act and first step act cases to the opinions I am waiting for. But anyway, so they released Babcock and only Babcock Thursday morning at 10 a.m. And I thought, okay, that's it for the day. Let's go home. And then I finished teaching my second class that day, walk out and check my phone, and then all of a sudden we have the vaccination cases.

Right, exactly. Just a surprise I wanted. So that was the opinion. And the court also heard oral argument in several cases last week. And we will recap those arguments now. So do you want to start us with Gallardo, Pavan? Yeah. So the first case is Gallardo versus Marstiller, and this is a case involving the tragic injuries to Giannina Gallardo, who was hit by a pickup truck and injured so severely that she now requires round-the-clock

care and is unable to take care of herself. So the case involves the interaction between the federal Medicaid statute, which provides government-funded health care services for the poor, needy, and persons with disabilities, and on the other hand, private tort lawsuits, where individuals file legal claims seeking damages because someone or something injured them. And the basic question in the case is whether and how much the federal Medicaid statute allows the state Medicaid agency, which has paid a lot of Gallardo's medical expenses, over $800,000 worth, to claim from the settlement in the lawsuit between Gallardo and the trucking company that injured her.

That question involves both a legal one and a factual one. So the legal question is, on one hand, the Medicaid statute allows a state Medicaid agency to seek reimbursement if a third party caused the medical problem and paid for the Medicaid patient's medical costs that Medicaid covers. But on the other hand, the Medicaid statute prohibits a state Medicaid agency from laying claim to other money that the Medicaid recipient has. So states generally can't take a Medicaid recipient's money in order to pay for health care services that Medicaid provided to them. Medicaid agencies can't have a lien or a garnishment on recovery awards, for example. And the more factual question is, what does the settlement in the lawsuit between Gallardo and the trucking company actually represent? So in the lawsuit, the family sought over $20 million in damages representing future medical payments, lost earnings, pain and

suffering, as well as compensation for past medical expenses. But they settled for $800,000, and the state agency has already paid more than $800,000. So how do you apportion the award? How much of it represents one kind of damages versus another? Now, there are some previous Supreme Court decisions that are relevant to thinking about how to apportion the award and what the state medical agency can lay claim to. So in a decision called Albarn, for example, the Supreme Court held that Arkansas could not assert a lien against a legal settlement for the full amount of past medical expenses Arkansas had paid.

So Arkansas asserted a claim to $215,000 of a $550,000 settlement when Arkansas had paid that $215,000 in medical expenses. There's also laws, and in that case the Supreme Court held that a North Carolina statute couldn't be enforced, where that statute required up to a third

of a Medicaid beneficiary's tort recovery to go to the state Medicaid agency because the state didn't substantiate its kind of assumption and the assumption behind the law that in most cases, a third of a settlement represents past medical expenses. But the case boils down to a question of statutory interpretation, whether the statutes permit the Florida Medicaid agency to lay claim to past and future medical expenses, or maybe just past medical expenses, and whether the Florida Medicaid agency is laying claim only to money that is either past or future compensation for medical expenses paid by the Medicaid agency, or whether the agency is laying claim to other past and future. So that provision says that a state plan for medical assistance shall provide that the individual is required to assign the state any rights to payment for medical care from any third party.

The plaintiff, supported by the federal government, says this provision is limited by a more specific one, 42-1396-A25-H, which limits a state to pass medical expenses. And that provision says, a state plan for medical assistance must provide to the extent that payment has been made under the state plan for medical assistance in any case where a third party has a legal liability to make payment for such assistance the state has in effect, laws under which to the extent that payment has been made under the state plan for medical assistance for health care items or services furnished to an individual. The state is considered to have acquired the rights of such individual to payment

by any other party for such health care items or services. So earlier, Sections 25A and B speak about pay for care and services available under the plan. And those provisions, a plaintiff says, seem to suggest, well, the Medicaid statute only allows the Medicaid agency to get payment for things under the plan and payments made under the plan rather than future medical expenses and other kind of money that the Medicaid recipient might have as well. So here's what happened at the oral argument. Before we get into the questions, though, a little bit of scene setting and context. So Justice Thomas began the questioning. That's kind of become the new norm, and it reflects his new position as the functional chief justice of

this new court. And Justice Thomas asked about whether the plaintiff's proposed rule would work the same if it was child support payments versus a tort recovery. But that's less important than what happened next, because then something different happens. So in other cases, it's been the Chief Justice who follows Justice Thomas in the questioning, reflecting his position as the formal Chief Justice, i.e. the Chief Justice in name only, or Chino. This time, however, my Chief Justice, Justice Kagan, jumped in. I don't know if this is sending some sort of signal about something. I don't know. I'm grasping at straws here. I think Justice Kagan is now the people's justice. Justice Kagan is the people's Chief Justice. She's like the shadow chief justice.

You remember during the Trump administration when people were talking about like shadow cabinets and like people referred to Larry Tribe as like the shadow attorney general and things like that. And Justice Kagan is the shadow chief justice. Maybe that's what this is referenced to. That's what's going on here. She's trying to send us some signals. Anyways, Justice Kagan first wanted to know whether the statutory language distinguished between past medical expenses already paid and future ones versus medical expenses on one hand and damages representing non-medical expenses. though, because at other points she pointed out that a neighboring provision in the statute, Section I, requires insurers to accept an assignment from a Medicaid beneficiary for paid expenses. And she notes that's kind of the other side of tort recovery that is, you know, the assignor and the assignee. And she notes that it would be kind of strange if one provision required something other than the other provision did. So there are two other threads in the questioning that we want to highlight. One is that some of the justices wanted to test something other than the other provision did. So there are two other threads in the questioning

that we want to highlight. One is that some of the justices wanted to test the state Medicaid agency's position, which is that the federal statute allows them to assert a lien on future medical expenses. And they asked whether the agency could continue to assert that right if a beneficiary went off Medicaid or future medical expenses weren't actually covered by the Medicaid program. As Justice Kagan, the People's Chief Justice, and others pointed out, there isn't really anything about the federal statute under the state Medicaid agency's interpretation that seems to forbid this, but that also seems kind of insane. Yeah, like the state Medicaid agency could just continue getting money from you even though they're not paying anything like that. That's kind of an odd interpretation of Medicaid, not how I demolish the spending clause, but also appears to be itching to decide whether

a private party, here the Gallardo family, can sue to enforce their rights under the Medicaid statute to retain other money from the settlement award. So Justice Gorsuch seemed to be of the view that the only way to enforce this Medicaid provision would be for the federal government to either withhold Florida's Medicaid money if the state doesn't comply with the terms of the federal statute, or perhaps for the federal government to sue Florida. So this issue, whether private parties can sue to enforce federal statutes related to Congress's spending power, is a really important federal court's issue about the availability of causes of action and remedies for violations of federal law. And the court has some cert petitions raising this issue that it could act on soon. So as

Neil Gorsuch is wont to say, watch this space. So next we'll move on to a pair of cases about immigration, Garland versus Gonzalez and Johnson versus Arteaga-Martinez. And these are the very important immigration cases about whether persons detained under certain provisions of immigration law are entitled to a bond hearing every six months to determine whether the government may continue to detain them. So as we discussed in the preview, there are actually two legal questions in the case. The first question is whether cases of this kind and these cases specifically can proceed as what are known as class actions. So do you want to do a refresher for our listeners? What are class

actions? Class actions are an aggregation mechanism where lots of plaintiffs are part of the same lawsuit. Yeah. So it's like one person sues and they're like, I'm suing on behalf of not just me, but other people like me as well. And then if they get a ruling, that is, if their case actually proceeds as a class action and they win, that ruling applies to other people like them rather than just the individual plaintiff. in these immigration cases, the lawyers for the immigration applicants say it's important to have these cases specifically proceed as class actions for several different reasons. One is that people in immigration proceedings might not have legal representation. They're not constitutionally entitled to a lawyer. And so that means they might not know that there was this other case involving some other person that entitles them to a bond hearing. Whereas if you get a class action, then they're entitled to that judgment and it applies to them and the government has to comply with it, whether or not they raise that in their individual case. And so it just provides a

mechanism of protection for people who might not be represented by lawyers. And another reason that that's important here is because there are lots and lots of immigration cases. And the docket of federal courts sort of swells with these immigration courts. So those courts might find it difficult or overwhelming to adjudicate all of these cases individually. So if you can adjudicate them together, you get that one determination that applies. So that's the first question in the case, whether this case in particular and cases of this kind can proceed as a class action. We'll unpack the argument there in a second. But the second issue in the cases is whether individuals are entitled to bond hearings. So bond hearings are very simply just a hearing before some sort of neutral arbiter to decide whether

the government can continue to detain you specifically, either because you're a threat not to show up to a future immigration hearing, you are a threat to the community, or some other such reason. But basically, it's an individual hearing that is determining whether to grant you bond and allowing you to be released. So why are bond hearings potentially important in these immigration cases? So first, these immigrants are being held basically imprisoned, and there's a big human cost to being detained. Second, there are due process issues that come up in these circumstances, and you want

to give people an opportunity to make sure that their due process claims are being adjudicated, decided, and they're not being held in violation of them. And again, as you were saying earlier, people might not have legal representation in these proceedings at all. And so you want to make sure that there are times that people can come forward and be in front of a neutral arbiter. And finally, some people might choose to forego claims rather than stay in detention, particularly if they don't know that they're going to have a bond hearing. But if they know they're going to be in front of a neutral arbiter, then the immigration system retains its integrity because people don't feel this heavy burden of when am I going to get out, when is someone going to hear my claim and settle

away potentially meritorious claims just because they're so desperate to get out of immigration detention. Okay. So that sets the stage for the issues in the cases. And here's what happened at the oral arguments. So the court first heard oral argument in the case Johnson v. Arteaga-Martinez. And that case focuses on whether the statute requires bond hearings for persons who are detained more than six months while their immigration proceedings are pending. So part of this argument involves how to read the court's prior decisions in DeMorvi-Kim and Zidvitas v. Davis. Zidvitas held that when removal wasn't reasonably foreseeable, there the government hadn't identified and maybe couldn't identify a place to remove the applicant.

An individual was entitled to a bond hearing presumptively after six months of detention. And in Damore, the court held that the rule didn't require bond hearings for persons still in immigration proceedings where it's not clear whether they'll be ordered removed. But the court decided that case and reached that conclusion based on the assumption that the proceedings would wrap up quickly and within less than six months. But that was based on erroneous statistics. And those erroneous statistics, which were based on misstatements by the Solicitor General, came up at oral argument. And Justice Kagan, interestingly, was the one who brought them up. So let's play that clip here. Was DeMoore, Mr. Rayner, and I might be wrong about this, was DeMoore the one where the Solicitor General provided wrong information to the court,

and basically the court was operating on a false understanding of how long some of these detentions lasted? You're correct, Justice Kagan, that the Executive Office for Immigration Review later provided updated statistics to this office, which we provided to the Court in Jennings. When Damore said that, when Damore said, look, it's pending a proceeding, Damore was thinking of, you know, a proceeding that was going to happen pretty soon. And I think the question here is, what if we're in a different situation than that? What if, in fact, it's not going to happen pretty soon? 2023, we just started 2022. That's a year away. He's already been detained for some time. I mean, now we're talking about, you know, some significant time.

And I'm not sure it quite matters to the person who's in detention, whether you're in detention because they can't find a country or whether they're in detention because the immigration system is backed up. I don't know if you found it interesting that Justice Kagan was the one to bring this up. You know, she's, of course, a former Solicitor General of the United States and worked in the office that had given those misstatements to the court. But I don't know, I found it interesting that she was the one that kind of surfaced those arguments.

I think that she cares a lot about the integrity of the Solicitor General's office. And I think misstatements sometimes happen, but correcting misstatements and also office. And I think misstatements sometimes happen, but correcting misstatements and also the law that results from misstatements is something I think she would be particularly attuned to having held the position of Solicitor General. I think that's a great point because I remember her being somewhat upset or irritated during the oral arguments in the Affordable Care Act case, where the Solicitor General's office, then under the Trump administration, was advancing a pretty

aggressive theory of standing that would allow many more plaintiffs to potentially challenge federal laws. And she basically asked the person arguing for the Solicitor General's office, isn't it a bit odd that the federal government is advocating for an expansive version of standing when that is not in its institutional interest? So I think you're right. She's very keen on protecting the institutional interests of that office. And Justice Sotomayor made clear what those misstatements meant. On these facts, removal wouldn't be reasonably prompt and detention wouldn't reasonably conclude in short order.

You said that the next hearing in this case, in this particular petitioner's case, was scheduled for 2023. But earlier you said that the average detention rate is below the six months. But that's not true. Average means that it's true for a lot of people, but it's not true for a lot of people as well. As I understood some of the figures I reviewed, when you talk about reasonably foreseeable, some of these proceedings can last years and years, couldn't they? So Justice Sotomayor also highlighted, as we did in the

preview show, about how a lack of access to counsel can make it impracticable to litigate these cases on an individual basis, rather than under an injunction entered by a court requiring the government to provide hearings in all cases where persons are detained more than six months. So let's play that clip here. You keep talking about an individual challenge as adequate to protect the rights of these individuals. Most of these non-citizens are overwhelmingly non-lawyers. And for virtually all of them, English is not a first language. Most of them are impoverished. And without the ability, given that the only opportunity they have is administrative,

and so they're unlikely to be represented by lawyers, how are these aliens, without the help of the courts and lawyers, supposed to protect their rights? Justice Sotomayor, the regulations provide for an interpreter if the non-citizen needs it. The non-citizen is entitled to be represented if he so chooses, and the non-citizen can submit information. They're not entitled to lawyers. They have to go find one. It is correct that the government does not pay for lawyers in this context, but that's obvious.

It's hard to see how impoverished people unfamiliar with the workings of this government, of this country, are going to find lawyers. It seems like a pharic offering to say that an individual hearing is of any benefit to them, counsel. But that doesn't necessarily mean the applicant is going to prevail. As one of Justice Kagan's questions hinted at, a majority of the court may no longer think Zadvitas was correct. That was a 5-4 decision written by Breyer, joined by Justice Stevens, O'Connor, Souter, and Justice Ginsburg from 2001, so from several eras ago. Mr. Shaw, I suppose that this court thinks about Zadvitas as, you know, a precedent that needs to be applied, but not one that is altogether

comfortable and should not be extended. I mean, suppose that that's the view of Zad Vidas on this court. I mean, what does that suggest about your case? You know, is even the preliminary argument you make, let alone the second argument, an extension of Zedvitas? If not, why not? Do you think it was a little awkward for Steve Breyer in this moment to be thinking, wow, all of these new justices think I was wrong and they're not even willing to respect my decision. Like, I kind of wondered about that. I think awkward for sure. But I think that he's worried about some of his other opinions a little bit more than he might be worried about this one. That's fair. On the list of Steve Breyer's opinions that the Supreme Court is about to blow up,

this might not be high on that list. Maybe that's a sign, Steve. Maybe that's a sign. But I'll leave that. So the second case that the court heard on these issues was Garland v. Gonzalez, which involved some consideration of whether a provision in the immigration statute prohibits courts from entering injunctions on a class-wide basis that require the government to implement the statute as written, or at least as courts interpret the statute to be written. So the relevant provision is 1252 F1, and that provision says that regardless of the nature of the action or claim or the identity of the party or parties bringing the action. No court, other than

the Supreme Court, shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of Part 4 of the Subchapter as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. I feel like you're the Régé-Jean page of this episode, Pévin, because you're reading us all the statutes. So we appreciate you. Don't tell people I'm reading them. I want everyone to think that I've just memorized them all. Okay. She is reciting all of these statutes from memory. It's Rege Jean who has to read them. So there we go.

So Justice Kagan opened with some real doubts about the government's interpretation of this statute and specifically whether the phrase to enjoin or restrain the operation of the provisions prohibited the courts from requiring the government to comply with the provisions. So let's play a few of those clips now. Mr. Ganning, as I understand your jurisdictional argument, it really all relies on the idea that enjoin means both stop and require. Is that correct? It depends on that with respect to and join separately. Yes. If the question of... Putting aside the individual issue. No, even... So I'm just going to, I mean, of course you're right that if you look up the word and join in the dictionary, you can find something that suggests not stop, but something like order or require or something like that. But I'm just looking at this phrase,

enjoin or restrain the operation of certain statutory provisions. And let me give you some examples about what the word enjoin would mean in similar phrases. The plaintiff seeks to enjoin enforcement of the law. Does that mean stop? I think it's hard to tell from that context whether it means that they seek to have the law enforced. Really? It's the plaintiff seeks to enforce the law as opposed to the plaintiff seeks to enjoin enforcement of the law? Doesn't that obviously mean stop enforcement? Okay, let's go a few more. I mean, because to me, the plaintiff seeks to enjoin enforcement of the law. It means like stop enforcing the law. Sometimes it does. And if you were to say on... The plaintiff seeks to enjoin, excuse me, the agency seeks to enjoin the aiding and abetting of securities law violations. Now let's say that, I mean, I guess, look, I just get the point.

It just seems to me that the ordinary way of reading any of those three would be, oh, you're obviously looking to stop something. But let's add some stuff. Because this statute says, enjoin or restrain the operation of certain statutory provisions. So you're essentially reading it to say the court lacks jurisdiction to stop or require or restrain. Now, that would be sort of odd, wouldn't it? So selfishly, because I feel personally validated whenever Justice Kagan agrees with a view that I have, I wanted to highlight an amicus brief that I joined together with other federal courts scholars that made this argument, namely that the actual wording of the statute did not prevent courts from issuing injunctions requiring the government to comply with the terms of the statute.

That is requiring the government to actually carry out the statute versus enjoining or restraining the operation of the statute. So, schwing. I think I see why she's your chief justice. Exactly. She is my chief justice. And then all of my arguments would be winning and this world would be amazing. And, you know, just I want to live in that fantasy for just one second longer. So Respondents Council Matt Adams of the Northwest Immigrant Rights Project was terrific. He knows a

ton about immigration law and how it operates. Earlier, the petitioner's counsel asserted that there's an entitlement to counsel at these interviews. Well, that is wrong. Even their own regulations say that the individual may be accompanied at the discretion of both ICE and the detaining institution. So only if ICE affords you that right. And in my experience that never happens. You're never notified that ICE is going to drop by the cell at 2.30 tomorrow afternoon to show up. That simply does not occur. There is no right to confront the evidence. If the agency has decided that you are to remain detained because you present a risk because of a burglary charge against you, you don't have the opportunity to even learn of that charge or that basis for the

agency's reasoning. You don't have the opportunity to present the documents to show that that charge was subsequently dismissed or if they're relying on the fact that your case is on appeal you don't have the opportunity to then confront that evidence and point out that you actually prevailed before the lower court. But now the government has appealed your case, dragging it out for another year. Lawmaking and Judicial Review that felt really relevant to me in thinking about whether to allow these kinds of cases to proceed against the executive branch requiring the executive branch to comply with statutes and whether or how we should think about courts supervising the executive branch's compliance with statutes. So could you share a little bit about that article

with us? Yeah. So Enforcement Law lawmaking and judicial review is finally coming out after two years of toiling. And I argue in the paper that a lot of the recent developments that we've seen in lower federal courts, like more robust case management and telling the executive branch to turn over more discovery and their acceptance of new theories of state and congressional standing and nationwide injunctions, all the sort of fun, hot-button issues that we should look at them together and in separation of powers terms. So basically, I argue in the paper that by reshaping the boundaries of traditional federal courts doctrines, lower courts are checking the executive branch in sort of this Madisonian

checks and balances kind of way, like original separation of powers conceptions. So everyone should stay tuned for that article and check it out when it is out. And I am very much looking forward to seeing the final draft. So congratulations on the piece finally coming out soon. Thank you. So one other case was argued this past week. We're not going to do a full recap. And that was Bowler versus Commissioner of Internal Revenue, the tax slash civil procedure case that we previewed on the last episode. There was a notable exchange from the oral argument that I wanted to highlight. So let's play that clip here. You don't really need any context to

understand the gist of it. We think that is... Counsel, I'm not trying to hurt you. I'm actually trying to help you. And I agree with you. I'm the one she's trying to hurt. Basically, the question was about whether the Chief Justice had diagrammed the sentence correctly. And Justice Sotomayor was trying to help counsel construct an argument for why he had not. And it seemed like this style of Justice Sotomayor's questioning is unique in that she asks friendly questions in a very pointed way that's almost like a direct examination or a cross-examination, rather. She wants one word, yes or no answers. So she's going to line up the argument for you, and she just wants you to agree with her. She's trying to help you out, and you

need to figure out what that is so you can just kind of get out of the way and let her make the argument is what this felt like to me. Sometimes it's hard to tell when you're up there, I imagine, whether the questioning is friendly or unfriendly when it's coming at you. Yeah, no, for sure, for sure. But Melissa Sherry was great. She came back at Justice Gorsuch on history and text. And at various points, he said, I'll spot you that. And I got your point. It's a good one. Way to go, Melissa. So that wraps up our recaps. We are now going to shift to previews. We are going to do a more in-depth preview of one of the cases being argued next week because I finally have another post-conviction aficionado on the podcast with me who is not

going to turn off their Zoom camera when we talk about the case. So we're not alone. I know. Exactly. There are more of us than we think. OK. So the case that we are going to spend a little beat on is Concepcion v. United States. This is the big sentencing case.

The court is going to hear this upcoming week that Kim Kardashian, if you're listening, needs to get involved with STAT. So the issue in the case is what do the resentencing proceedings authorized by the First Step Act look like? The issue will determine whether there will be new reduced sentences for individuals who were sentenced under the old flawed sentencing system for cocaine offenses, which punished offenses involving crack cocaine way, way harsher than offenses involving powder. So as we've talked about on the show and as came up in an argument last term, the sentencing disparity between crack and powder offenses was rooted in part in racial stereotypes, and it produced extreme racial

disparities, since Black defendants were more often convicted of crack cocaine offenses rather than powder cocaine offenses. And the Howard University Civil Rights Clinic, led by Tiffany Wright, a former guest on this show, filed another great brief in this case, spelling out the racial disparities under the old system and how the First Step Act was supposed to fix them. So the legal question in the case is whether the First Step Act either requires or permits courts to take into account other developments in the law besides the changes to the crack powder sentencing regime. For example, here, the defendant was subject to additional time in prison because he qualified as a career offender under provisions directing more time in prison for persons with three

or more prior convictions for violent felonies. But under subsequent cases, his prior convictions may not qualify as violent felonies, subjecting him to additional time. But the lower courts declined to order a new sentence or sentencing for Mr. Concepcion because the district court that originally sentenced him when sentence or sentencing for Mr. Concepcion because the district court that originally sentenced him when the old sentencing scheme was in place gave him what's called a below guideline sentence, less prison time than was recommended. And because his term of imprisonment falls within the amended guidelines range under the Fair Sentencing Act and the First Step Act,

if you assume he's still a career offender, the court said the sentence is fine, which oddly punishes people who receive lower sentences the first time, even though there might have been really good reasons why they should receive less time in prison and courts would still want to take account of that today. So this case is also at heart a statutory interpretation case about what the First Step Act means and the kinds of resentencings it authorizes. And to understand the issues, I think some people might not be aware that when Congress or a state legislature amends their criminal laws, it doesn't actually change the sentences or convictions for people who were previously convicted or sentenced under those laws. So for example, for states that repealed laws criminalizing marijuana

use, that doesn't automatically do away with prior convictions for marijuana use. It would only change those old pre-existing convictions and sentences if Congress or the state legislature explicitly made their changes to criminal law retroactive. So there's actually a presumption against retroactivity, and amendments don't apply retroactively unless a legislature clearly states that they do. And the question in this case is kind of like, does that presumption against retroactivity apply as just a threshold issue, or does it also inform the scope of any resentencing proceeding? So what I mean by that is, there's no question that Congress made the amendments to the crack cocaine disparity

retroactive. That's what the First Step Act did. That's the threshold retroactivity question. But then the question is, well, what should courts do with other changes to the law that haven't been explicitly made retroactive and usually wouldn't even be relevant but for the fact that Congress made the amendments to the federal drug laws retroactive? And that is the scope question. Do we apply a presumption that Congress, when it authorized these resentencing proceedings, did not intend to allow courts to consider other changes in the law that haven't been made retroactive. That is, can they only consider the changes to the federal drug laws and otherwise put themselves

in the position of the court that originally sentenced a defendant? So the government leans very heavily on Dillon v. United States, which said that in a resentencing conducted pursuant to a provision authorizing resentencing when the sentencing guidelines have been retroactively lowered, courts don't consider intervening legal developments. But the provision at issue in Dillon, which govern resentencing under the guideline and the provision at issue here, which governs resentencing when a statute has been amended, are an analogous. They're not even worded the same. And in any case, the specific question in Dillon was whether the courts could sentence a defendant to a term that fell below the amended guideline range. And the Supreme Court said no.

I was a little surprised that the Biden administration chose to stick with this position in the Supreme Court, given that they had adopted a rather expansive interpretation about who could be resentenced last term in Terry versus United States. But then all of a sudden, they're coming back here and saying, well, in those resentencings, they're not actually going to do that much for people with prior convictions, because none of the other changes to the law are going to be relevant. So anyways, that was just one thought I had. But this case is also kind of messy because the government and the courts below take the position that they're not saying that courts can never consider other changes in the law. They can consider them just only after a court has made some kind of threshold determination about whether to do an actual resentencing, which the courts did not do here. But there's some

fuzziness between what the positions are and whether the government is saying, well, can courts ever consider this? And the government says, no, we're not saying that. But then it's not clear in what set of cases courts actually could consider other changes in the law. So I just worry that that kind of messiness might get in the way of the courts actually resolving this important question. I think we'll have to see an oral argument whether the people's justice comes after them on that one. Whether the people's justice is able to impose some clarity here. Here is where her prior service

in the Solicitor General's office, I worry, will cut against me, namely the SG's office has this tradition of kind of maintaining consistency and particularly consistency in taking harsh positions in both the immigration cases, you know, that we were talking about earlier, as well as federal criminal cases like the one here, even when I don't think they are warranted as a matter of statutory interpretation. I mean, we heard Justice Kagan kind of mocking the lawyer in the SG's office for their interpretation that courts couldn't issue the injunction in the

immigration cases. And I am just hoping, hoping, hoping she is going to do the same here. Okay, so now on to some court culture. What is happening with the SB8 case? Let's do a quick recap of what the Supreme Court actually held in the SB8 case. And then we can talk about what is going on in the Fifth Circuit. So just to refresh our listeners, the Supreme Court in the SB8 cases said that the abortion providers lawsuit could proceed against state licensing officials, but only against the state licensing officials and not the other defendants. And that conclusion rested on the Supreme Court's determination about the meaning of SB8, that is the meaning of the Texas state law. The Supreme Court said the providers could sue the licensing officials because the Supreme Court concluded that those officials retained power to enforce the law,

SB8, namely that those officials had authority to discipline doctors and nurses for performing abortions in violation of SB-8. So Supreme Court sent the case back down to the U.S. Court of Appeals for the Fifth Circuit, and the Fifth Circuit is debating whether to certify a question about the meaning of SB-8 to the Texas Supreme Court. So what's certification? Certification is when a court decides, hey, we don't know how a state is going to rule on this question. And then they write the question down and literally certify it, send it over to the state court and say, you answer this question for

us. Tell us what does Texas law say about this question? And that process reflects the reality that federal courts are not the final arbiters about the meaning of state law. Rather, state courts are the bodies that ultimately decide the meaning of state law. So the Fifth Circuit is like, look, we don't know whether the Supreme Court was correct to say that these licensing officials actually do have this enforcement authority under SB8. So let's ask the court that knows the answer to that question and has the authority to decide it, the Texas Supreme Court. So the Fifth Circuit heard oral argument on the state official's motion to certify this question to the Texas Supreme Court, and that oral argument got real, real quick. The panel that heard the oral

argument is Judge Stuart Kyle Duncan, Judge Edith Jones, and Judge Stephen Higginson. For people not as obsessed with the appellate courts as I am, just some background, Judge Duncan is the judge who wrote an opinion for the Fifth Circuit rejecting a transgender litigant's request for the court to use correct pronouns to refer to her. That was United States v. Varner. He was appointed to the Fifth Circuit by Donald Trump. Judge Edith Jones is a judge on the Fifth Circuit. She has issued opinions criticizing Roe versus Wade. She also once told another judge to shut up at an oral argument.

That was Judge Dennis, although she did later apologize for that. Anyways, so how the oral argument played out. Judge Higginson, who is a Democratic appointee on the Fifth Circuit, fixated on how courts just haven't certified matters to a state Supreme Court after the Supreme Court weighed in and when defendants hadn't asked for certification for a period of months during the litigation. And in fact, had argued that the state law was unambiguous in the Supreme Court and that there wasn't a need to ask anyone else what this state law meant. So here's a flavor about how this oral argument went. There was a missed joke or like a missed understanding between the judges. So let's hear kind of how this got started, which was Judge Jones suggesting maybe they, the Fifth Circuit, should certify this case back to the Supreme Court, asking them to reconsider if the Texas Supreme Court comes back and

says the licensing officials lack authority under SBA. So if we send it to the Texas Supreme Court and the Texas Supreme Court says the disclaimer, which the motions panel found pretty definitive in the statute, is a specific section that controls over other general enforcement sections in the Texas Health and Safety Code. Then I suppose maybe we ought to certify back to the U.S. Supreme Court and respectfully ask whether they need to reconsider. And then Judge Hickinson follows up on this. So what's your position? Is it remand directly upon certification answer? Or is it what you answered to Judge Duncan that we would then address other issues? Is it what Judge Jones just

said, which is we would certify back Supreme Court? What's the direction? I didn't say that. In her question, she proposed it. You can't do that. That's what I was thinking, but she seemed to accept it. Oh, you were joking. Okay. She smiled. Okay, okay. I didn't understand the joke. I'm poor with humor.

I love procedural jokes. I love them. I mean, like. Especially an oral argument. Right? This wasn't like a procedural joke in the sense of like a pun or something like that. It was floating a procedure that doesn't actually exist. And I think I felt for Judge Higginson here because, you know, the Fifth Circuit has done some pretty crazy things. And the idea that they would try to certify a case to the Supreme Court asking them to re-decide it, not so clear. That's all that different from some other things they've done. I just think if a judge makes a joke and you know it's a joke, then I don't know if the judge is doing a good job being a judge, right? Like,

you always want that sort of uncertainty out there. Like, was that a joke? Was it serious? Am I in trouble? Am I in contempt? What's going on here? Yeah. And the Fifth Circuit has definitely preserved some plausibility as far as their willingness to, let's be, let's say, procedurally innovative. Anyways, Judge Jones got a little testy with the lawyer arguing for the abortion providers. So let's play that clip. This is not a press conference. This is an argument in court. And then I think the moment that really caught everyone's ears was when Judge Jones kind of said some of the quiet part out loud. And let me ask you one final question from my perspective. What happens if the Supreme Court, as many expect, says something about Roe v. Wade that implies that Section 8's prohibition on abortions after heartbeat may be enforceable?

What happens then? Is this case alive or dead? Your Honor, that's a question that the district court would be if the case is still pending in the district court. We ought to just sit on this until the end of June. Your Honor, that would be completely inconsistent with how the Supreme Court. By that time, it's very possible that the hot potato will be in the seat of the Texas Supreme Court, don't you think? Anyway. Anyway, segue. Should we move on and cover some court culture? Yeah.

Now would be a great moment to speak about the other ways that women are about to be and are being empowered at the Supreme Court. So let's talk about the breakdown in gender equity in lawyers arguing at the Supreme Court. So 19 lawyers are arguing in the regularly scheduled cases, i.e. not the vaccination cases that the court moved from the shadow docket to the regular docket of those 19 lawyers. Two are women. Yay for the two women. Ladies, we have fallen behind men named Matthew. There are more men named Matthew arguing than the two women arguing in regularly scheduled cases.

So maybe try harder next time. Now, that being said, including the vaccine cases, there are 25 lawyers arguing, four women. So if you include those, we beat Matthews by one. So, yay. Yay. Arguing. Other random court culture.

It's hard to know how to segue from this bleakness. You know, not much commentary you can provide to the fact that there are more Matthews arguing during a sitting than women. So we'll just let that one stand. But there was an alliance, let's say an unusual alliance, between two women on the Supreme Court when on the orders list, Justices Sotomayor and Barrett wrote in a statement respecting the denial of certiorari written by Justice Sotomayor and joined by Justice Barrett about how the lack of quorum on the United States Sentencing Commission, and that's the body that deals with the sentencing guidelines that apply to all federal criminal cases, how that lack of quorum has meant that the commission isn't able to resolve disagreements about the proper interpretation of federal sentencing laws. They wrote that in the case Garant v. United States, which is about what a controlled substance offense means, and prior convictions for controlled substance offenses trigger increased penalties under the sentencing guidelines. And, you know, they've identified a problem.

Ladies, I have the solution. Appoint us to the sentencing commission. Do it. Like, Devand, me, Professor Brandon Hasbrook at Washington and Lee. Like, we would have a good time. We would get things done. We're here. Exactly.

Putting it out into the universe. That Senate hearing, I bet that would be good television. Just going to add that, too. Just have C-SPAN on all the time until we appear. Right. So Justice Sotomayor continued to participate remotely in oral arguments this week. Justice Breyer participated remotely on Tuesday, and it was reported that he had a false positive rapid test in the morning, but then a negative rapid and PCR test later in the day. In this grab bag of doom and gloom court culture, one final piece, a follow-up on the Chief Justice's year-end report. You may recall we noted that in that year-end report, the Chief Justice stated with confidence that Congress need not do anything to address harassment

or misconduct in the federal courts because the federal courts could and would address it themselves. Fast forward like two weeks and Anne Merrimow, a wonderful reporter at the Washington Post, has reported that the federal judiciary withdrew a survey question after initial responses to the question showed that employees of the federal courts had witnessed misconduct. No, really, that actually happened. The federal judiciary took away a question on an informal survey that asked clerks and judicial assistants whether they had witnessed wrongful conduct in the workplace, and they withdrew it, but only after 34 of about 40 employees answered yes to that question. And it's like, I understand you don't want this problem to exist, but merely because you don't conduct a survey does not mean

it doesn't exist. But they did conduct the survey. Right. I mean, they did for some short period of time, and it revealed things they would prefer not to know. And yes, this is where we are. So again, women's empowerment. That's one way of fixing it. Right, exactly. One way of fixing it. Make it disappear.

Women's empowerment, really having a great go of it in the courts. Thank you to Melody Rowell, our producer, as always, for producing this episode. Thank you to Eddie Cooper for making our music. And thank you so much, Pavan, for making time for this episode. Thank you for having me. It's been awesome. Bye, everyone. Thanks for listening.