Strict Scrutiny - How To Train Your Killer Whale

Episode Date: July 20, 2020

Leah Melissa, Jaime, and Kate recap the last term -- high points (flushgate), low points (you’ve heard some of these before), and everything in between.  They also discuss the psychology behind how to train our country’s new median #SCOTUS killer whale, John Roberts. Oh, and there are LOTS of announcements and breaking news on this episode too. Follow us on Instagram, Twitter, Threads, and Bluesky

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

I'm Jimmy Santos. And I'm Kate Shaw. And we are back for our term recap of October term 2019. So get ready. We're going to break it all the way down. Kate, what's our outline for the show today? We're going to do breaking news first. We're going to start with actually some podcast-related breaking news and then some court and broader country-related breaking news. We will then go on to some term recaps. We recapped a lot of the cases as they came down. So we're going to go,

you know, look at some bigger themes and underappreciated dynamics of both the opinions and the commentary on those opinions. And we will wrap, as always, with some court culture. So the exciting podcast news. We are thrilled to announce that Strict Scrutiny is partnering with The Appeal, which covers how politics, policy, and the legal system affect vulnerable communities in this country. We are beyond excited to be working with The Appeal. They have been doing incredible things over the last few years, bringing attention to

the ways in which our society and politics neglect the less powerful, such as people in prisons and jails and detention centers, lower income people, people experiencing homelessness and the like. We try to discuss on this podcast not only the ways the court's decisions shape the law, as it's taught in law school and practiced in courtrooms, but also how the justices' work affects people's everyday lives, their ability to vote and elect leaders, their reproductive freedom and access to health care, the fairness with which the government treats them, the process accused, people who are due in criminal court, and so on. In the upcoming term, we'll be paying special attention to these and other issues, how this court protects the interests of less powerful people and interests in organizations, and how it does not. And we are particularly excited about this partnership because none of us really have a core expertise in criminal justice.

And so we are hoping to do some episodes with people from the appeal to cover more of those issues in more depth. So to Josie Duffy Rice, who's the president of the appeal, please consider this a formal invitation to come on the show with us. Your support has made our first year possible, and we're so grateful. We really could not have done this without you. But we're really thrilled that an organization

like The Appeal wants to help us to make the podcast a more permanent gig, which allows us to do things like pay Melody her real rate, offer our listeners transcripts, which will make the podcast more accessible, and to allow us to record with people who don't have professional setups. And so with this partnership, we're going to be able to do all of that, but we're also going to be able to, once we get out of this pandemic situation, be able to do live shows where we

can meet with our listeners again and hold receptions afterwards, or we can talk through some of these issues. So this is really fantastic for us, just in terms of broadening our expertise, bringing in new people, and also allowing us to bring the podcast even closer to all of you. So we're really, really excited. And it will also allow us to better enforce the Voting Rights Act. If you are anyone who follows the court, you will know that the last couple of hours, or last 36 hours, have been really difficult ones because Justice Ruth Bader Ginsburg announced in a personal statement from the court that she is experiencing a recurrence of cancer. So on July

17th, Justice Ginsburg released a statement explaining that on May 19th, she had begun a course of chemotherapy and that she was going to continue to do her job at full tilt because she felt fully able to do that. But very clear, this is really difficult news to take. Justice Ginsburg has had more than a few skirmishes with cancer over the last couple of years. She was recently hospitalized in May for a gallbladder infection where apparently these lesions on her liver were discovered. But we are obviously worried about her, sending her all of our good vibes and good thoughts. And again, as always, deeply admiring of her fortitude, her strength, and her ability to continue plugging along and doing this really important job that she does. So get well soon, Justice Ginsburg.

And we are, of course, cheering you on. And just to give you a sense of that fortitude, this is her second bout with cancer this last year. In last August, at the beginning of the term, she was treated for pancreatic cancer. This time it is liver cancer. And this is the third hospitalization she has undergone over the last few months. And yet still, she is producing high level work at the court. Absolutely. You know, I've made jokes about using hand sanitizer or donating my organs, but this update just made me just deeply sad. I think some of the physician commentary has been

that this looks like it might be metastasized cancer from her original pancreatic cancer. And I just hope she's not in pain or discomfort. And I wish her all the best in her treatment. A second very sad piece of news, Congressman John Lewis, perhaps the most towering member of the civil rights movement still surviving, passed away after a bout with cancer as well. There have been lots of kind words and really amazing memories and stories shared about Congressman Lewis. A great way to honor him would be to restore the Voting Rights Act, which he, I think, sponsored legislation to do after the Supreme Court Shelby County decision. I am deeply sad, as I know many are, and his memory will be thought about for a long time and he will be deeply missed. Yeah, it's a devastating loss, obviously, towering both civil rights and

specifically voting rights hero. And the loss comes at a time when we are still so far from racial justice and when voting in particular feels incredibly precarious. I do think that, as Jamie just said, trying to galvanize both Congress and the public to support a new round of voting rights legislation would be an appropriate way to honor the legacy of John Lewis. There have been efforts to pass a new version of the Voting Rights Act since it was gutted by the Supreme Court and John Roberts specifically in the Shelby County decision. And I think that would be a fitting tribute. And so we very much hope that, you know, probably not Mitch McConnell's Senate, but a new Congress takes that very seriously, right? There was a lot of blood and sacrifice

that underlay the original Voting Rights Act. And we have a long ways to go. And so I think another round of federal legislation would be an appropriate step. I like to openly mock Secretary of Commerce Wilbur Ross's suggestion that they were interested in adding a citizenship question to the census to enforce the Voting Rights Act, just because it does, I think, make a mockery

of the seriousness of the law and the importance of protecting voting rights, particularly coming from an administration that has done nothing to protect voting rights and a lot to undermine them. And I know we're going to be talking a lot about John Roberts in this episode because that has been kind of an important theme of this last term and also a feature of a lot of the commentary surrounding this last term. And when John Roberts authored the decision invalidating the Voting Rights Act in Shelby County, John Lewis said this, those justices were never beaten or jailed for trying to register to vote. They have no friends who gave their lives for the right to vote.

I want to say to them, come and walk in my shoes. And, you know, again, I make jokes surrounding the Voting Rights Act, but it is in part because of the horrific treatment that this administration and this court have given to voting rights. One of the points I made yesterday that I think is worth making again, especially as we've seen this morning, this flurry of lovely elegies from both sides of the aisle about John Lewis's legacy. It's always surprising to see some of these individuals, I think, who would support the cutting back of the Voting Rights Act or who would limit the opportunity to vote or call for more stringent voting requirements to sort of hail this man as a hero. Because when he was doing this work in the 1960s, John Lewis was as radical as they came. I

mean, the way that Republicans, I think, or some Republicans talk about Black Lives Matter is the way that people talked about John Lewis in 1964 and forward. And so I think there's some sort of an interesting kind of symmetry and the way in which these ideas that seems revolutionary and indeed radical become mainstreamed over time. Like the idea of justice, of being allowed to vote without poll taxes or being beaten or being intimidated just became a kind of mainstream thing. But that idea was actually incredibly radical in the 1960s. And he was the one forcing people to confront how unjust our system of representation was, like the fact that broad swaths of individuals in the South could not participate in the polity. And, you know, today he's a mainstream hero as these accounts suggest,

but he was a fighter. And I think it's really moving, perhaps telling that the last photograph that we have of him is in front of the White House on Black Lives Matter Plaza, standing with Washington DC Mayor Muriel Bowser. He felt very much a part of that movement and that it was an extension of the work that he did. That's so important about how he was viewed as a radical at the time, even though he is celebrated

as a hero today, because part of how you get ideas like John Lewis's to be made into a reality is people insist on them being taken seriously, even when they are viewed as out of the mainstream or, you know, not receptive or likely to be received by people in power. And the speech that he had originally drafted at the rally about the Civil Rights Act included a line that was deleted in preparation to the speech about how one problem with the Civil Rights Act included a line that was deleted in preparation to the speech about how one problem with the Civil Rights Act of 1964 is that it did nothing about police brutality. And his original draft talked about how we were living in a police state. And as we are thinking about Black Lives Matter protests and Portland, these are words that have continued resonance today. All right. So let's turn to recapping this term and what a term it was. We said at the outset

that this is going to be a barn burner of a term. It did not disappoint. But Leah, were there any particular themes that emerged in your view that were especially pronounced? So I'd actually like to first discuss a theme that others identified in the last term before we get to the theme that I think some of us saw in this last term. So as the court's term drew to a close, a lot of people focused on the fact that the chief justice was now decidedly the new median justice on the court. Some people called him the new swing justice. He was in the majority more than other justices.

He was in the majority in all of the five, four decisions except for one. He wrote extremely significant opinions in the Deferred Action for Childhood Arrivals case. He wrote separately in June Medical the abortion case. He wrote the presidential immunity cases. He wrote important religion decisions in Espinoza. And he really left a significant mark this last term. And I think in part because some of those decisions did not fall along purely ideological lines, one theme that emerged in the commentary from this past term is how independent and what an institutionalist John Roberts is. the Supreme Court tacked to the center, or National Public Radio described unexpected splits.

Jeff Rosen in The Atlantic, who heads the National Constitution Center, wrote a piece about how John Roberts is just who the Supreme Court needed, or Akhil Amar wrote in The New York Times, in a polarized nation, the justices continue to defy politics. The Roberts Court is nothing like America. And there was really a common thread in these takes that the Supreme Court was somehow above politics, not political, or at least the chief justice himself was. Well. Where to start? Well, to be clear, that is not really a distill to be cheered. And then there were these hysterical women, me, you, Leah, Dahlia, among them, Linda Greenhouse, too, suggesting that this decision was much more problematic and limited than perhaps they thought. And to me, it seemed that a lot of the commentary was sort of of the vein of Chief Justice Roberts is doing something good

and we should praise him so that he will continue to do these good things again some more. And I was reminded of this New York Times article from a couple of years ago, basically the gist of which was, you know, are you worried about how to get along better with your husband, how to make your husband do more housework? Think about these tips that killer whale trainers use. Like when you're training a killer whale, you praise them lavishly for doing something. You should do the same thing with your husband. I thought that this was exactly what these commentators are doing with John Roberts. And so in this analogy, the chief is Shamu or Shamu? He is. He is an orca. Is that what we're supposed to think? That's exactly it. You know, like, jump higher. Good job, John. Good job, John. That sort of struck me as what they were trying to do, like to sort of salt him with bits of praise so that in the hope that he would, in future cases,

future, perhaps more momentous cases, again, tack to the left or tack to the center. But that presumes what he did was tacking to the left or center. And I don't know that that was the case. But there is a question here about what it is Supreme Court commentators are trying to distill complicated decisions and, you know, group together a number of decisions and identify some true and correct themes that emerge from those cases. But you're obviously right that it is not as simple as that, right? Like the commentary is emerging into a world that the justices inhabit. And consume. They themselves read.

They read the New York Times. They listen to NPR. At least some of them do. And so, of course, it has to enter your mind how these kinds of reviews of the court's performance might be received by the justices. I mean, I will say when we do this podcast, I never think about that. I don't know if you guys do. Like, are they listening and what? I mean, John Roberts, I would love to the chief all of the links to the podcast when they go out. No, no, I don't think about that at all. I'm just kidding. that Leah just described, which was John Roberts' transcending partisanship, the great unifier, was sort of strikingly uniform in a lot of this kind of the sort of the big takes on the marquee cases. And I think that both you, Leah, and you, Melissa, have been very important public critics of the correctness of that narrative. And I think I probably fall somewhere

in between. I do think, you know, Lee and I did another podcast yesterday that suggested that for progressives, like dodging bullets rather than, you know, notching a lot of big wins was really what this term was about. That it is, of course, correct that there could have been, you know, if June and Bostick and, you know, God forbid, the Vance and potential congressional cases had resulted in big wins for abortion restrictions, employers who want to discriminate on the basis of sexual orientation and gender identity, you know, presidential immunity, that would have been truly horrific, you know. So I don't want to discount the significance of the wins in any of those cases. And yet, for reasons that we can talk about, the wins are all of them quite qualified.

And John Roberts did plenty of other things this term, including in cases on the shadow docket, which we'll talk about, that are quite inconsistent with the narrative that Leah just described. I also think it's important to, you know, flesh out some of the views that Leah and Melissa have been talking about publicly, because I think we need to be cautioning organizations who are crafting impact litigation strategy that, you know, just because the chief voted in one way in this case does not mean he's necessarily going to be a friend down the line in similar or related

cases. So we need to be really, really careful about what cases we're bringing to the court, how we're litigating cases, what kind of records we're creating. And then the other thing I wanted to add about this notion of the chief as an institutionalist, which I think we've talked about a lot over the last couple of years, is I think it oversells the way he's doing so. And it also undersells other justices' institutionalist tendencies. So I think that Justice Kagan is also an institutionalist. But I think it just means something different for her than it does for the chief. So for the chief, I think being an institutionalist means trying to avoid the appearance of partisanship,

trying to avoid weighing in on disputes that he sees as political, particularly those having to do with voting rights or disputes between the political branches. I think it's a form of institutionalism, but it's focused more on optics than on substance. Whereas for Justice Kagan, I see her as an institutionalist, but that for her means the court cannot avoid those really tricky and sticky disputes. It means that the court exists in part to ensure that the political branches don't run roughshod over constitutional rights, most fundamental among them, the right to vote. And finding ways to punt on those difficult issues is an abdication of the court's very reason for existing.

And I think she would think that that is worse than just having people upset at the result that you reach. I think that's such a great point, Jamie. So much ink has been spilled and so much has been said about the chief justice as an institutionalist, and I'm as guilty of it as anyone else. I mean, I think it is the most obvious way to understand what he does, but I think you're right. In framing him that way, we overshadow other kinds of institutionalism that may actually be more meaningful in terms of securing the legitimacy of the institution. I mean, his, I think, is perhaps a kind of selective and maybe even itinerant institutionalism that, as you say, is more concerned about the

public veneer of nonpartisanship as opposed to actually being really about the longevity of an institution. Yeah, I want to second that being a great point, Jamie. I mean, I think, of course, Kagan's dissent in the partisan gerrymandering case last term sprang to mind immediately when you said that. And that is, of course, right. I mean, the court's very legitimacy is tied inextricably to a sort of set of political processes that function, right? So the court can only do things in counter or anti-majoritarian ways because it occupies this special space that does have this derivative legitimacy by virtue of the

justice's appointment by the president who is selected by the people, right? So there is this, though indirect, democratic accountability that is part of the sort of position of the justices and the legitimacy of the court and where they won't work to ensure the functioning of democracy as in the Russo case, right, where they won't intercede to prevent extreme partisan gerrymanders or to protect the right to vote in the face of very clear unconstitutional infringement of that right. The court's own legitimacy is compromised. And I think you're right that the style of institutional legitimacy that John Roberts seems most driven by isn't that kind of sort of deep,

substantive and structural commitment to real legitimacy. The thing that I think is interesting about the commentary that has emerged is you can look at it from at least one of two ways. So one is the instrumentalist perspective, Kate, that you were kind of giving it and Melissa, which is the chief justice needs to be given positive affirmation so that he continues to do these things. But I would think that something that is equally important from an instrumentalist perspective is explaining what might lead the chief justice to feel compelled to vote the way he has. things, public attention to given issues, public attention to the court, and public commentary about the court as a political institution. And the court's role in American politics has come under increasing pressure after the court got thrown into the 2016 election with high-profile appointments and with politicians

clamoring for and suggesting that perhaps the court's numbers should be expanded or their jurisdiction limited. And it is in that context, in the lead up to an election year, that there is more pressure to maintain the appearance of institutionalism and impartiality, particularly, again, on issues that manage to capture the public attention like DACA or LGBT equality or abortion, but perhaps not on equally, if not more important issues like voting rights. And then the second is some of the metrics that these studies use to argue that the chief justice is becoming more liberal are what are known as the Martin Quinn scores. And they measure who a justice votes with, but they are agnostic and don't measure at all the substance of the underlying issues.

So if a justice votes with, let's say, four liberal colleagues, not to, I don't know, overturn Roe or overturn decisions saying there's a constitutional right to vote, then that is viewed as equally, let's say, partisan or nonpartisan as a decision that, you know, that same justice could have voted with their colleagues on the opposite side overturning Roe. That is, it doesn't measure changes in the law or departures from existing precedent, or how radical or not a given vote is. And it's part for that reason that I just don't think that these studies or commentary are portraying an accurate picture, because they don't dive into the qualitative substance of the underlying cases or arguments. And they also don't unpack the contributing forces and incentives that may have led the chief to vote in these particular ways.

That's a really good point. And the other thing I was thinking about is, you know, when Justice Kennedy retired, the starting narrative was that the chief would be the swing justice. And I feel like we and others kind of got people to stop using that term, the chief is a swing justice, and change it to the chief is the median justice. I would argue that we should move to kind of round two of this, which is stop referring to the chief even as a median justice. I think the only way to really understand the court right now is that there are kind of two polls. There's the Alito-Thomas poll on one side.

There's the Sotomayor-RBG poll on the other side. And then really all of the five other justices remaining can change their votes and vote on different sides in any case, depending on the precedent that exists, depending on the issue, depending on the procedural posture. And we don't talk about how often Justice Breyer or even Justice Kagan votes with more conservatives, which is quite frequent, especially in criminal cases. I'm not sure I would go that far. And I particularly wouldn't put Sotomayor and Ginsburg on an opposing pole as Thomas Alito, again, just like given, I think, the substance of the underlying views. But I do think it's important to like unpack the different, you know, contingencies within the court.

To Jamie's point, and I take your point, Jamie, to be that it's perhaps a misnomer to call the chief the median or swing justice, in part because it suggests a kind of either moderating influence on the part of the chief justice or just a kind of moderation to his ideology about the work of the court. And I actually think that he probably is in the middle, but it just means that the middle has really moved to the right. I mean, I think it is less telling to describe him as a swing justice in terms of his own judging and more revealing as to what it means for the direction of the court. And I think the court has moved to the right. And the fact that he's sort of in the middle, like to be picked off as, you know, a sort of deciding vote in some of these big cases

suggests how far to the right it has moved. And that part, I don't think has been covered as extensively as this narrative about him being in the middle and perhaps being a more moderating influence. Yeah. And just to be clear, I'm not saying like if the center is zero, Alito Thomas or negative 10, Sotomayor and RBG are positive 10. I'm thinking it more as like zero, negative 14 and like positive seven or something like that. This is getting very quantitative. Math is never good. This is why we all took the LSAT. Okay. There were some other big cases, though, where I'm not sure we saw the impact of this, quote unquote, moderate chief justice. And one area I think where the court very

firmly lurched to the right was in the area of religion. So we had a number of really important First Amendment cases. And maybe this is a commentary on the commentariat, I'm not sure that they got the kind of coverage in the mainstream media that they probably should have. And again, this goes back to the conversation that Leah and I had with Ellie Mistal. I think they were probably covered by the print press extensively, but less so in network media or cable news, where I think a lot of Americans do get their news about the Supreme Court. So a couple of these cases to note, Espinosa versus Montana Department of Revenue, Our Lady of Guadalupe and Morrissey-Beru, which were two cases involving the ministerial exception.

And then finally, Trump versus Pennsylvania, which we have been shorthanding as the little sisters of the poor case. So these were big wins for conservatives. And I think huge for a more muscular vision of the free exercise clause and perhaps big losses for other kinds of values that wind up being superseded by free exercise, including the impact of anti-discrimination statutes like Title VII and even the establishment clause itself. And this is all, I think, working up to a kind of grand showdown that we're going to see next term when the court takes up Fulton versus City of Philadelphia, which is, again, another challenge to the right of religiously affiliated charities to make decisions about whether they will place children with LGBT couples or LGBT persons in terms of foster parenthood. So I think this is a place where

we just have not seen a lot of commentary, but it was an area where the court very much displayed, I think, a more conservative slant. Yeah. And the combined effect of the trilogy of cases you noted is that religion has to be treated the same as non-religious entities for purposes of funding. You know, the scholarship money has to go to both religious schools and non-religious schools, but then religiously affiliated entities or entities with religious objections have to be treated differently for purposes of anti-discrimination or civil rights statutes. And then the next iteration of that question, as you noted, is Fulton, which is in Espinoza, could the state come back and say, well, we'll make scholarship

money available to anyone provided that you agree not to discriminate against LGBT employees or students. That's the question in Fulton, but in the context of foster care placement. And I think it's a really serious challenge were the court to say, no, you can't even condition government funding or benefits or contracts on compliance with the anti-discrimination norms. Do we want to talk at all about Breyer and Kagan in these cases? I mean, we talked, I think, a little bit. So in Our Lady of Guadalupe, the ministerial exemption case, they both join in full, right,

the opinion that holds that the ministerial exception, right, a broad exception from anti-discrimination laws does cover these two teachers. A judgment, a totally made up one. Yeah, I mean, so it's grounded in the First Amendment, but, you know, the court doesn't even recognize it until eight years, seven or eight years ago right like it's a very it's been a lower court um doctrine for a long time but the supreme court has never even affirmed that it exists and now all of a sudden it extends to broad swaths of uh employees at at least religious schools and we don't know how many other kinds of religious

organizations. And we first talked about it. I said, you know, I gotta assume they joined and didn't write separately because they shaped the opinion in ways that seemed to narrow its potential applicability. And then just at the more I thought about it, I wonder whether they just briar and cake and just have a broad, maybe not even strategic, maybe just like broad and deeply held belief that the free exercise clause requires these broad exemptions? Like it's not, is it principled or strategic, their decisions to go along in cases like this or in Masterpiece, Cakeshop or Trinity, Lutheran, right? You know, those are all slightly different cases. But the theme being sometimes you do have

this clash of principles, right? Religious liberty and free exercise on the one hand and other, you know, anti-discrimination and equality norms on the other. And they seem willing, you know, in case after case to side with free exercise. So I have to say Micah Schwarzman and Nelson Tebbe wrote this article, Establishment Clause Appeasement, that has really influenced my views about what the justices are doing in these cases. So they make the case that at least part of what is motivating these votes is some form of like institutional goodwill, where they try to make a showing of like good faith and institutional credibility, and that, you know, the paper analyzes kind of whether it's worth it. So I read the abstract, but not the article, but I gather they make the, their position is no, it's not worth it. They're not getting what they give. That's basically. What do they think? Do they hypothesize about what they, apart from just general goodwill that may extend to other areas of law or other cases in the same

area of law, what are they trying to maximize here if they speculate? And again, in the idea of appeasement, sort of giving on free exercise for the purpose of maintaining whatever shards of the establishment clause continue to exist. I mean, I sort of think about the dynamic in town of Greece versus Galloway. So that was from what, 2014. And Kagan, I think, wrote the main dissent. It was a Kennedy opinion for the majority, allowing legislative prayer and to be, to open up city council sessions in the town of Greece. And it was Kagan who authored this decision that was, I think, a very robust defense of the establishment clause. So I take the idea that it isn't worth it to appease on free exercise because you're actually not saving the establishment clause at all. You're actually contributing to the

incremental undermining of establishment clause values. And with a court like this, and we can talk about what is a court like this, but I think it is one where you don't see just these abrupt lurches, but rather an incremental and sedimentary building up of things. And suddenly, the establishment clause doesn't mean anything at all anymore. And I think that's the point that Micah and Nelson are making in that piece, that eventually you're going to turn around and whatever you did is not going to be enough to save a muscular vision of the establishment clause. And along those lines, one of Justice Kagan's first, I think, was powerful dissents was that Arizona Christian schools versus win about, you know, funding to religious schools and whether taxpayers could challenge it. One thing on Justice Kagan in particular is, you know, she tends to hold her firepower

until she really, really strongly believes in something and has a very strong view on it. And you can see that just if you look at the number of opinions that are authored by each justice. So this term, not counting per curiams, are around 150 or so opinions drafted. The chief wrote nine of them. Justice Kagan wrote only 10. So, you know, really not doing a ton of concurrences.

By comparison, Justice Alito wrote 24. Justice Thomas wrote 31. And by pages, Justice Alito wrote 20 percent of the pages released by the court in opinions this year. And 80 percent of those pages was his. In Bostock. Yeah, I know. But it actually, it makes me think of like Hamilton, how do you write?

Like you're running out of time. I cannot sing, but it's a very, I mean, it seems to me like Justice Kagan takes a very different approach and she really holds her firepower until she feels like she absolutely has to speak out. And the question is, right, you know, is it worth it? So another theme of the term was definitely executive power.

There were a ton of cases this term about the executive branch's power to not afford judicial review in immigration cases, to remove principal officers and agencies, to defy state and federal subpoenas, and to change agency positions without adequate explanation, as was the case in DACA. And as we've also seen actually more recently in the COVID-related cases about international students attending universities in the United States. And, you know, there were, I think it's a bit more of a mixed bag on executive power, but I would say by and large, the court led by the chief justice affirmed that the executive has a ton of power as long as it dots its T's and crosses its I's when it's making, when it's making decisions. The biggest exception to that would be the subpoena cases where I think the court put more limitations in some kind of vague multi-factor balancing test that usually the chief hates, but this time embraced. But generally speaking, it seems like the court has really embraced a pretty broad view

of executive power. Do you all generally agree with that? Or did you kind of have different takes? I think I agree with the bottom line that the court definitely embraced like a strong vision of executive power. I guess I don't necessarily think of DACA and the immunity cases as really constraining executive power that much, in part because DACA, you know, declined to say the president lacked the power to enact DACA, the procedural constraints, as applied to the Duke to enact DACA, the procedural constraints, as applied to the Duke memo there, were not particularly stringent. And in other cases, the court, in fact, rejected some dotting I's, crossing T's rules on agencies, and in particular, the Little Sisters of the Poor challenge. There, the court cast aside these, I think,

kind of important administrative law doctrines that the D.C. Circuit had had, where the court basically said, you know, we're not going to remand a rule to the agency if the error was harmless, an open mind during the rulemaking process, then we can challenge the rule on that basis. And the court said, no, we're not going to do that either. So even on these kind of administrative law challenges, I feel like, if anything, the court made some moves to loosen the constraints on agencies. It was just DACA in particular, again, given that the court was focused on the Duke memo, involved a particularly slapdash and shoddy administrative work product. And then the immunity cases, you know, yes, the court did not kind of embrace the administration and president's personal layers, super broad notions of, you know, monarchical executive power as a basis to challenge the subpoenas. But I actually think the multi-factor test in Mazars is pretty friendly to the president and more so than existing law was that the Court

of Appeals understood and, you know, could prove to be over time. You know, I do think that both DACA and the Little Sisters of the Poor, like, you know, so these are APA cases, right? These are cases where the big legal questions arise under the Administrative Procedure Act. And it does feel like the court continues to want this part of the APA that prohibits agency action that is arbitrary, capricious, and abuse of discretion or contrary to law has real teeth and that there's real substantive review of agency decision making and agency reason giving that the APA requires of courts. And so I do think that gets reaffirmed in DACA. Obviously, that's the principle that underlies, although in, you know, this kind of pretext-focused way, the census citizen case from last year. And, you know,

and even though I think it's right that the court is forgiving of the agency's potential procedural do the real work of considering the impact, say, of adopting a rule that exempts the employers of, you know, well over need to take all kind of relevant factors into consideration when making their substantive decisions. It seems to me that there are very good arguments now, especially based on the new DACA opinion, that it was substantively unreasonable for the agency to have issued this rule with the breadth of exemptions that it contains. And so I do think, again, it's just a concurrence, but it does seem that seems consistent with the logic of DACA. And, you know, I guess that the subpoena cases feel like kind of a draw for presidential power to me, honestly. Another cut at Leah's, I think, correct critique of some of these attempts to quantify, you know, agreement and move among justices and, you know, and on the part of particular justices and their kind of ideological evolution is sort of the bluntness of some of the tools, but also their failure to account for the kinds of like if the Supreme Court gets served up tons of crazy arguments from from very conservative lawyers and rejects all of them. You know, I guess we code that as the Supreme Court moving left. But the movement on the part of the arguments is not captured right by any of those kinds of measurement tools. And so, yeah, I think that the absolutist arguments in both of those cases were really fringy arguments and so were correctly rejected. But I guess substantively, like in terms of what changes, I mean, I guess as I've tried to think about the Mazars opinion and sort of what it would mean for lower courts to go through the test that the chief justice lays out like I think these at least one and maybe a couple of these subpoenas

survive that without even you know no reissuing required like I think in the lower courts like they should take a look and like were the was was separation of powers appropriately considered and were these subpoenas necessary and is the purpose valid and like I think they're actually really congress favoring answers to all of those questions if the court will, in good faith, just let the lower courts implement what it has set forth in those cases. So I guess I think a draw and again, to go back to grading on a curve, you know, it certainly is the case that very bad law and presidential power could have been made and was not. And I continue to feel like there is obviously value in that. Speaking of lower courts implementing the subpoena cases, the court actually issued

the mandate in the New York grand jury case, thereby allowing the lower courts to proceed. And a little bit of a, I told you so, the district judge in the case, Judge Marrero, indicated he was a little bit confused about what to do in light of the court's remand. So the president indicated, you know, he was going to bring kind of new legal challenges. And the court was kind of like, gosh, like, I kind of think I basically already ruled on all variations of this, but the Supreme Court seems to envision otherwise. So they set a kind of expedited briefing schedule with, I think, all papers to be due mid-August. But this is something we flagged on the last episode, wherein the Supreme

Court seemed to play a little bit fast and loose with the terms of the Second Circus disposition in the case to the lower court. So can I flag another theme from the term that I think was also kind of a mixed bag? And that was, I think, just questions of race more generally. I think we had some really interesting race decisions. Ramos versus Louisiana was certainly one that resulted in jettisoning Apodaca, a 1972 opinion on the ground that it wasn't really precedent. It was sort of an anomalous Sixth Amendment case and also had failed to appreciate the underlying racial dynamics by which the state of Louisiana had created this non-unanimous jury conviction rule. And then we also had that contrasted with the Comcast case,

which I call the Byron Allen case, where the court actually made it tougher for civil rights plaintiffs to bring claims about racial discrimination and contracting to the courts. And then we had the DACA case where apparently the only person on the court who could recognize race was Justice Sotomayor, who wrote a very lonely dissent, arguing that the plaintiffs should at least be able to continue to press their case as a procedural matter in the lower court. So, you know, all of those together, to me, sort of lend themselves to a kind of interesting sort of outcome, which is to say that I think in places where the racial animus is obvious and there is obviously consensus that racial animus exists, the court is okay

with recognizing it. And I think Ramos was one of those situations where literally Louisiana was the only state in the union that had this particular rule and everyone could understand how it would dilute the votes of black jurors. But in other cases like Comcast and DACA, the sort of racial dynamics that undergird those circumstances, I think, were harder for various members of the court to recognize and indeed to act upon. And so that, again, is a kind of mixed bag. I think it will be even more consequential going into this election cycle where we'll probably see even more emergency petitions regarding Voting Rights Act that, on their surface, present in a kind of race neutral way, but actually have quite raced context in terms of whose vote is being suppressed and who is being denied the opportunity to vote. I think that gets back to what you said earlier

about John Lewis, Melissa, which is at the time, John Lewis was viewed as something as a radical, even though today we recognize him as a hero. And it's in a lot of ways very much easier to recognize the wrongs of the past than to recognize the wrongs of today. Yeah, that's a great way to put it. It's also extraordinarily troubling, I think, if the standard for the justices, at least for five of the justices, being able to recognize a race discrimination or racial animus problem is like Ramos. Like if that's the standard, we're in a whole world of trouble. And it made me think of something that I think one of you said in recapping June medical,

which is the substantial burden test. You know, none of the conservative justices are ever going to think something's a substantial burden. Like it, it would, the burden would have to like, like tweak the chief justice's nose and like,

you know, cause him to erupt in pain for him to actually see it as a burden. And I worry that discrimination and racial animus are going to kind of have a similar future. I certainly hope that's not the case. And certainly more diversity on the court would would would provide a greater perspectives and life experiences that would aid in that addressing these issues. I mean, and to go back to what you were saying, Melissa, about how race and these voting cases that we are likely to see more of between now and November intersect. I mean, it is the case that

under some circumstances, we have seen John Roberts willing to basically call government actors out on their bullshit a little bit, right, in DACA, not as explicitly in the commerce decision. So where you have these restrictive laws or government actors in the states unwilling to make accommodations in voting to respond to this unprecedented pandemic, and frankly, its wildly racially disparate impacts, you know, I just, it would be so, like, it is the case that they have made the projection, rightly or wrongly, like it could be wrong, but that it is to their political disadvantage to make absentee voting easier. Roberts should be able to see that and appreciate it. And that is part of the reason I find Bill Barr's willingness to second the president's absurd and ludicrous and wildly dangerous charges about absentee ballot fraud.

So scary. Because Barr lends a degree of credibility to those kinds of charges that I worry will then give Roberts the cover he would need to say, look, these state actors say they're worried about fraud, like that's all they're doing. When everyone knows, and Roberts should be able to appreciate that that is not what they're worried about. They are attempting to suppress voters that they think won't break their way and that those voters will be disproportionately people of color. The other part of that, I think, Kate, is that, you know, there is a tendency and I think the chief justice is perhaps the biggest sort of proponent of this view that talking about race in a straightforward and emphatic way is somehow uncivil, right? I mean, it was Justice Alito who said this in his dissent from Ramos, but the Chief Justice has done this over the years in numerous cases, this idea that discussing race is somehow uncivil and to talk about it is to call someone on the other

side a bigot. And, you know, again, I come back to Justice Sotomayor, who has said just openly, like, the only way to get past this past that we have that is so salted with racial animus is to actually talk openly. Like, it's not uncivil. It's not problematic to talk about it. In fact, honesty is like the only way we'll ever move forward. And yeah, I just think the chief justice's sort of skittishness about addressing it forthrightly will, I think, perhaps inform the way he writes, the way he judges, and perhaps lead to decisions that I think miss the point in the way that you're suggesting. Yeah.

On Ramos, the chief justice actually joined that portion of Justice Alito's dissent. Even though Ramos involved a law that I think most people recognized at the time, the permission of non-unanimous juries was based in racial animus. You know, that decision was still 6-3 with the chief justice as one of the dissenters. Kate, as you were talking about absentee ballots and voter fraud, I don't know if you could hear Stevie barking, but like she could hear the dog whistle. And actually, when, you know, again, not to make this kind of like the theme of the episode, but when the Chief Justice was nominated to the federal courts, you know, one person who testified against his confirmation was John Lewis. Like, why did he do so? Because of John Roberts' record on voting rights and trying to restrict voting rights. He said his record demonstrates a strong

desire to reverse the hard-won civil rights gains that so many sacrificed to achieve. And you can't elevate an individual to a powerful lifetime position when their record demonstrates a strong desire to reverse the hard-won civil rights gains that so many sacrificed so much to achieve. So even if the chief might be, let's call it superficial or perceptive institutionalist on some issues, I just don't think voting rights is going to be one of them so long as that issue just does not get the kind of national attention that DACA and abortion rights and LGBT equality do. And that's really sad. It is. And it's also a good segue because we're going to continue. And I think for what it's worth, it's totally fine if this is one of the themes of the episode, because it is, I think, one of the themes of the term.

And that is to talk a little bit about the shadow docket, which does feature a number of voting cases. And the shadow docket just refers to cases that the court decides without the full briefing and oral argument that typically attach to the cases that are scheduled for either in person or in the pandemic days, these telephonic arguments. And that, as Leah just suggested at the end of what important work that the court does on the shadow docket. And that did in the last few months include some important voting cases. So voting not exclusively, but maybe we'll start by talking about voting. So we've talked on the show a couple of times about the Supreme Court's intervention in a Wisconsin case back in April, right before the Wisconsin primary election, in which it, and this is also a case that Leah has written about, but that it put on hold a Wisconsin district court order that would have extended absentee voting timelines, did the same,

basically the same thing in Alabama. Both of those were 5-4 cases in which four justices would have just let stand these district court opinions that, after very careful review of facts and records, made some changes to state voting laws in order to avoid these serious constitutional infringements upon the right to vote in this pandemic. There's one new entry kind of on the ledger of cases like this. Just this past week, the Supreme Court decided not to stay an 11th Circuit decision that had put on hold a district court injunction against Florida's pay-to-vote scheme, which the legislature and the state courts basically added to the state's. There was a constitutional amendment back in 2018 restoring the right to vote for close to, you know, I don't

think it's the numbers over a million Floridians with felony convictions who had previously not been able to vote. And yet state officials have interpreted that amendment to mean restoration only upon the payment of all fines and fees and restitution, which means people, you know, a very significant number of individuals are functionally not able to vote. A district court found that this interpretation of the constitutional amendment violated equal protection, the due process clause, the constitutional prohibition on poll taxes. And the 11th Circuit, without any explanation, stayed that district court injunction, which was, you know, just weeks before this August primary. And the Supreme Court declined to lift the completely unreasoned stay of the 11th Circuit, meaning people won't be able

to vote in the August primary in Florida. And it's very much an open question of whether they will be able to in November. And that is hugely significant, both, you know, in terms of the constitutional right to vote, but also the fact that a million individuals or close will be impacted by this decision by the court. So these are three huge cases. But did people hear about them the way they heard about the Markey cases? Of course not. Can I pile on for a second on the Florida case? Because I think merits are even worse than that description might suggest, because, you know, the legislature and state courts clarified that, you know, serving your sentence for purposes of the felon reenfranchisement constitutional amendment meant paying all your fines and fees and whatnot. But in Florida,

there's actually no centralized system to determine whether you have paid all of your fines and fees. So an individual who thinks, well, okay, can I vote? They can't call up some centralized place and get a decision slash statement about whether they can vote. And if they mistakenly vote, wrongfully voting in Florida is a felony, and there's no mens rea requirement. So they are subjecting themselves to a felony, which is part of where the due process challenge came from. And that was one of the basis for the district court, you know, invalidating that state gloss on the state constitutional amendment. A panel of the 11th Circuit actually upheld that.

But then the full 11th Circuit is what issued the stay, you know, more than like a year or so after the initial district court decision. And I think part of what was so striking about this decision is so you had a last minute stay in the case, but that stay actually led to the restriction of voting rights, but it was last minute. And usually we think of, you know, last minute changes to states voting laws as enfranchising rather than disenfranchising. But, you know, notwithstanding that the court still declined to disturb the stay. And I think it just made the entire specter of the recent voting rights litigation all the more troubling because if the court doesn't actually care about the last minute nature of the stays, then why is it bothering to invoke the Purcell principle? Instead, it should just say, we just don't think courts should, right, modify state restrictions on voting at all because, like, at bottom, we just don't care about the burdensome nature of the restrictions. One thing maybe to note on that would be that Justice Sotomayor, Justice Ginsburg, and Justice Kagan noted their dissents from the Supreme Court's decision, but Justice Breyer did not. Which doesn't necessarily mean he didn't join. Sometimes we just say noted dissents, as Jamie said, but I'm not sure why he did not publicly

note his dissent here. Yeah, I don't know either. So there were also other important stays slash decisions on the shadow docket. So we've mentioned the Trump administration's request for stays for decisions enjoining some of their regulations. So they receive stays and among other things, decisions in joining the public charge rule. This past week, they also received not quite stays, but actually vacatures of lower court injunctions involving challenges to federal executions. So the Bar Justice Department announced that it was deciding to resume federal executions for the first time in over a decade. And it

scheduled the executions for some number of federal inmates who then brought a series of challenges in part to the methods of their Eighth Amendment challenge, that the method in which they were going to be executed raised a substantial risk of cruel and unusual punishment. The Court of Appeals, the D.C. Circuit, declined to stay that injunction, thereby leaving it in effect and ordered expedited briefing. But then the court, by a 5-4 vote, vacated the injunction, and the federal government executed the first inmate, Daniel Lewis Lee, and then subsequently executed Wesley Ira Perkey as well. One thing I wanted to note on these cases is there was a powerful op-ed that came out this morning from Kate Stetson and Ruth Friedman, who represented Mr. Lee in one of these cases. And also, Kate Stetson was representing in the administrative law, the APA challenges to the execution protocol. The op-ed added some really enraging color on what

happened in Mr. Lee's case. The Supreme Court had issued its stay of the district court's order pausing Mr. Lee's execution. And then DOJ rescheduled his execution, even though there was a separate order from another district court that remained on the books pausing the execution. And then the Justice Department said it was going to execute him anyway. It was only after the Justice Department was threatened with contempt sanctions that it decided to file an emergency motion to lift that remaining stay. And through that entire time, for four hours, Mr. Lee was strapped to a gurney waiting to be executed. The government then went ahead and executed Mr. Lee, even while multiple

motions were pending, that were seeking a stay of execution remained pending and without even notifying Mr. Lee's counsel that they were executing him. And I think that the court's consistent vacatures of stays in these capital cases only emboldens the government to act in a way that I consider truly shameful. Also, too, I mean, just the characterization of the appeals as last minute was really interesting. And, you know, this was a point that Justice Sotomayor also made much of in her separate dissent, that there was nothing last minute about this at all. To flag one final thing, you know,

historically it was the case that if four justices in a capital case that was scheduled for execution wished to consider some aspect of the legal challenge that this prisoner was raising, a fifth justice would cross over and cast a fifth vote to stay the execution. Because remember, it takes four votes to grant a cert petition, but five to issue a stay. So you can have this disconnect in capital cases where you could have four justices wanting to take a petition, but unable to do that because the

individual is executed before consideration is possible. And I thought it was really conspicuous that although there were, it seemed to me, really potentially substantive and meritorious claims around both suitability for execution of these individuals and the lethal injection protocols themselves, the chief justice would not cast a vote to at least stay the executions so that the considerations that these lower courts had decided should be given to these claims could occur. And the government was already given expedited briefing in the D.C. Circuit. They just weren't satisfied with that and then went up to the Supreme Court to ask that the injunction be stayed. It's worse than the breaking of the norm that you characterized, Kate, because here there

was already a stay in place. So it's not just that the chief declined to give a stay of an execution. He voted to overturn an injunction that was in place. It's significantly worse, actually. of Daniel Lewis Lee, the district court found he and the other defendants were likely to succeed on another one of their claims that the Barr memo was contrary to federal law involving the regulation of drug safety. So those are another significant chunk of cases. Okay. So should we do a lightning round of favorite opinions and moments from the term? Sounds great. All right, Leah, we're yours. Okay.

Favorite opinions, definitely the Kagan dissent in Sela, Justice Sotomayor's dissent solo in the DACA case, and Justice Gorsuch's opinion in McGirt. Jamie? Sure. So at my oral argument phase, one was definitely the experience of listening to two women, Erica Ross and Lisa Blatt, break new ground with two completely different argument styles in arguing the first telephonic Supreme Court cases.

Another one is there was this moment in the cow pasture oral argument where Justice Kagan said to Tony Yang about his and Paul Clement's argument, something along the lines of, your words sound pretty, but they are nonsense. Like, you write really nicely, but what you're saying makes absolutely no sense. And it just kind of cracked me up on opinions. I agree with Leah on the McGirt opinion, the Sela dissent. And I also loved Justice Sotomayor's Our Lady of Guadalupe dissent. I'm going to pile on Kagan's dissent and Sela law and actually her opinion.

I'm not sure I agree with all of it, but her opinion in the Faithless Electors case for unanimous court was just like, is a really satisfying kind of historical romp. Oral arguments, basically the entirety of Julie Rickleman's performance in June Medical. And a moment in the Promessa cases when Jessica Mendez-Colberg asked the justices to overrule the Insular cases, which they declined to do here, but I thought was like a really righteous and amazing moment. My favorite moments from the term, my favorite oral argument moment was when Justice Ginsburg from her hospital bed held forth with a couple of really wonderful soliloquies that ended with a rising note to indicate that it was actually a question to Paul Clement and Noel Francisco in Trump versus Pennsylvania. Those were fantastic. I also appreciated Justice Sotomayor's

coronavirus pandemic vaccination hypothetical to Paul Clement, which was also good. And he seemed to be quite flummoxed by it. I also liked Flushgate. I know that that's perhaps a controversial take, but I think it's important to remember that the justices are just like us. And I absolutely loved the fact that we had live stream telephonic arguments. So that was terrific. In terms of opinions, I really enjoyed and was proud of Justice Sotomayor for standing up for the Equal Protection Clause and that issue in the DACA

case. I also want to just flag, this is not an opinion, but just rather a vote, but I think that, and this is a hot take, Justice Kagan's decision to vote with Alito and the chief in Ramos and to note the importance of precedent in that case, I think will have broader implications downstream for other cases where the question of stare decisis will also be meaningful. So I think that was my favorite kind of unexpected yet deeply strategic vote. Can I add a two quick oral argument phase since I didn't list them? One would be Justice, I'm sorry, not Justice. I'll just say Justice Sarah Harrington's, no, Sarah Harrington's response to Justice Gorsuch's question in Kansas versus Glover, where Justice Gorsuch started doing this New York accent, imitating a police officer. And Sarah said, this is Kansas, not New York.

I thought that was really funny. And then second is in Our Lady of Guadalupe, when, as Melissa noted, Justice Ginsburg was actually participating from her hospital bed, her note disclosing her cancer diagnosis that she issued in July said she began chemotherapy on May 19th, and Our Lady of Guadalupe was argued on May 11th. And in that case, she was talking to Jeff Fisher, who was arguing on behalf of the employees, and she said, you don't seem to make much out of what I find very disturbing in all of this, that the person can be fired or refused to be hired for a reason that has absolutely nothing to do with religion, like needing to take care of chemotherapy. And she noted that one of the employees in the cases had been fired after disclosing her diagnosis of breast cancer. And so I think that that exchange took on a new meaning

in light of her sharing her health. And was directed to her colleagues who likely had also been apprised that she would be needing treatment. Worst opinions or moments? Leah? I basically rattled off all of these already, but basically several of Justice Kavanaugh's opinions that I just think were a little bit too oversimplified. So that includes USAID, which we've already talked about, the old ERISA case, and then McKinney versus Arizona, which is a complicated resentencing retroactivity one. For me, it was Senator Nick Smith, without question. In that case, the Supreme Court vacated the Ninth Circuit's decision about encouraging staying or moving to the United

States without documentation. And the court said that the Ninth Circuit abused its discretion by relying on a ground that hadn't initially been raised by the parties. And in doing so, the Supreme Court relied on a ground that had not been raised by the parties because no one argued for vacature on this ground. It was infuriating. I will never get over that. My worst moment, worst opinion was Justice Alito's dissent in Bostock. And not because, you know, I think substantively it was wrong. I do think it substantively was wrong. But I'm just like,

anytime you write an opinion that's so big, it crashes the whole website. Like, you've got problems. You need to check yourself. So that's my worst. It's got a lot of rage to work out. Alito's dissent in Vance was also pretty terrible. I mean, he also, there's all this really gratuitous exploration of like a prosecution of the president and like what that, how it's all going to work. And it's like, no. Maybe he knows something we don't know. Maybe he's a Cassandra.

It exists in the same world that his, you know, the DA is calling the New York Times do, right? Like Earth, I don't even know, Seven or something like that. Things to highlight that we've noticed on a closer read of some of the opinions? I want to flag one thing in Gorsuch's dissent in June Medical, which is that evidently there's some sort of textualism exception that says you can spend four pages discussing legislative history in abortion cases. Like, it was so weird. He spends pages talking about physicians, women talking about their experiences with abortions. You know, whether or not any of that supports what Gorsuch wants to do here, so like, you would think that his intellectual vanity as, you know, textualism's new poster

child would have at least led him to suppress his desire to kind of gratuitously describe this testimony. And like, I don't know, no, it didn't occur to him. Nobody flagged for him like clerks. When you're clerking for textualist justice, like you're kind of like showing your cards if you're willing to spend pages on legislative history when it suits you. That I think is a terrific point. I mean, the whole upshot of textualism is it doesn't matter what was in the legislator's heads. It only matters what's on the page. And so much of that opinion was just about, you know, what were they thinking? Why did they do this? Like all the women they were going to save. And it was just like, I thought that didn't matter. I mean, so again, a different kind of abortion exceptionalism from the conservative wing of the

court. Yeah. It reminds me of Justice Scalia's dissent in Madsen versus Women Health Center, where he basically said that abortion works as like an ad hoc nullification regime of a bunch of otherwise generally applicable rules in the court's jurisprudence. So one thing I noticed, I was rereading Justice Alito's Bostock dissent this morning, and I noticed something I hadn't caught the first time around because I was trying to get yourself in rage. I really honestly I was I was like trying to get myself ready for this taping, but I was reading it having previously read Our Lady of Guadalupe. And obviously the first time around, I wouldn't have because Our Lady of Guadalupe came out, I think, on July 8th. Bostock came out, I think, on June 15th. So in his Bostock dissent, he used, on June 15th. So in his Bostock

dissent, he used religious teachers as a kind of sky is falling argument. He said this Bostock decision could lead to Title VII claims by religious teachers, even if the religion believes that sex reassignment procedures are immoral. So at the same time that he is writing his Our Lady of Guadalupe majority opinion, holding that Title VII doesn't apply to religious teachers. He was using religious teachers as an example of how dangerous Bostock would be, which is perhaps why we should not feel moved by Skye's falling arguments into sense. Were there things that we actually predicted? We're so good at being Cassandras. Were there things that we predicted and got right? And were there things that we perhaps went overboard on and got wrong? Kate, you're looking at me with a knowing glint in your eye.

Well, there is one moment that is, I think, a little bit me taking a victory lap and a little bit me acknowledging that I was totally wrong. So you remember, Melissa, you and I did an episode with Emily Basil. And I said sort of sheepishly that I thought Gorsuch and possibly the chief were still in play in Bostick. And that maybe if at least Gorsuch went that route, the kind of conservative legal commentariat would have to respect his commitment to the methodology of textualism, even if they disagreed with the result in the case, and that he would get some props for that. And you and Emily were like, you are, no, that's not happening. None of it was happening. No, I think I called you a cockeyed optimist. I think you did. I did. I did. I'm sorry. I can admit my wrongdoing. I'm sorry. My optimism was actually, you know, borne out in the result, but not in the reception

on the conservative legal front. But sometimes it was. I mean, like, didn't George Conway write a whole op-ed saying like, this is totally reasonable textualist opinion? I don't know if he's a good member and good standing of the conservative legal establishment. That's true. That's true. You were totally right. Emily and I did not think the chief would be in play in Bostock. And that to me was perhaps the most surprising vote of the whole term. But I think I expected, and maybe you did not, that if Justice Gorsuch had sort of gone down his textualist road as he did, I didn't think that the conservative legal movement would embrace it as, yes, that's where that leads.

I think we were going to get a sort of redux of the response to the chief justice's vote in Sebelius, the Obamacare case. And that's exactly what we got. So let's just split the difference. We were both right on certain points. I'll eat my share of the crow if you eat the rest. Let's do, we are running long, so let's do a quick court culture segment. First, inquiring minds want to know, are the Supreme Court law clerks having an end of the year virtual skit? There is a skit that is typically done at the end of the term. Usually it's in person.

Is there a virtual skit happening? What do we think? How would they do that? I mean, unless you were going to do it like a Brady Bunch style skit or, you know. Like the Parks and Rec cast did or the SNL cast did. That, I mean, maybe. The thing is, the Supreme Court law clerk cohort is decidedly less funny as a group than the participants in this. But that's a reason not to do the skit. Not a reason not to do a virtual skit.

Well, also consider that they were writing opinions way longer this year and, like, dissents and everything way longer this year than in prior years. So they almost surely would have had less time to be doing some of this stuff and like try to master, you know, the Brady Bunch style Zoom recording. I just think that this term, if you're still standing after this, like good on you. I just think this was just a grueling kind of slog by the end of it for people, especially if there were clerks with kids at home. Yeah. and to think about the fact that Justice Ginsburg was undergoing cancer treatment for most of it, you know? Oh, God. I mean, this was hard, I think, under the best of circumstances.

And she is just fierce, like in her ability to churn these opinions out. She didn't get skipped for the May sitting. Oh, no. Can I note one more piece of court culture? We can just briefly allude to it. Leah did a terrific episode the other day about diploma privilege, and this is sort of related to that.

So there's lots of stuff going on right now among the class of 2020 recent graduates from law school around the bar examination and whether or not they will actually be able to sit for the bar exam and under what circumstances. But then there's also, I think, a raft of interesting bar examination regulations that basically prohibit women or women-identified bar exam takers from bringing in things like feminine protection products, like tampons, or from lactating without certain guidelines during the bar exam because of fears of cheating. And, you know, I totally understand the need to protect the integrity of the exam.

Although it just seems like having the exam under these circumstances is a whole different question. But the fact that they are still prohibiting women from bringing their own tampons to the bar exam, like seriously? When I took my second bar exam, I was still nursing. And I will say the Bar of Massachusetts was wonderful. They created space for me so I could pump in a closet where I wasn't, so I didn't have to do it in the bathroom. In a closet. Yeah, in a closet. But I wasn't having to do it in a bathroom, which is a closet's a way better option than that. And guess what? people in Massachusetts practice law all the time and it's no problem, even if you take breaks to lactate. I just think that all of this, like as these like bizarre and arcane requirements surface, like, you know, I'm thinking I'm looking at you, Virginia, with your skirt suits for women and whatnot.

I think you're just really going to get the sense that this is not about professional competency in as much as it's just kind of a hazing ritual. And look, the women are getting hazed in these really particularized and gendered ways. And this is where Supreme Court judges of state Supreme Courts should consider that sometimes they're responsible for kind of overseeing the bar process or their voices can have incredible power. So if you haven't spoken up, state Supreme Court justices, now is the time to do so. Yeah. All right.

So that was the term. What a romp. I love that romp. A romp in history. Kate, that was great. A rollicking romp through history. We should talk about the summer a bit. One thing,

Leah already mentioned a big announcement about the show's partnership with The Appeal, which is super exciting info about the show and where it's going. One other announcement for today is that this is going to be my last show as a co-host. I have had a blast working with all of you, nerding out at Supreme Court cases and talking about Supreme Court culture. And I've so enjoyed getting to know our listeners at live shows and at happy hours. And I will miss you all deeply, but I wish you the absolute best of luck. Thank you.

Jamie, it's been great doing this with you. Thanks so much for all of the hard work that you put in this term with us. It was really fun. Thanks. Plus to what Melissa said. We are going to miss you, Jamie. So thank you so much to everyone for listening this term. Just to preview what's up for the

summer. Obviously, we have no new opinions to talk about with you. There will be no opinion emergency episodes, but we are going to have a more limited summer schedule with lots for you to think about and do. So every couple of weeks or so, we're going to drop a new episode on a range of different topics. Some of them will be our summer reading list. So we have some great interviews with authors lined up for you. We'll also do some deep dives on particular substantive areas. So don't worry, we're not leaving you in the lurch. We got you and you can listen to us throughout the summer on a more limited basis. And if you have ideas for episodes, please feel free to send them to us as well. And also feel free to continue sending us ideas for merchandise, too.

Some of the things that we're considering in the hopper are Stay Mad Sam, The Cassandra Club, Baby Girl, and so on. So thank you, everyone, to listening. Thank you, Jamie, for a wonderful year. Thank you to Melody Raul, our producer. Thanks to Eddie Cooper for making our music. Thanks to Sam, the intern, a law student who is helping us with research. And that's Sam Dunkel, not Sam Alito, just to clarify. Sam Dunkel can stay mad, too, if he'd like. Sam Dunkel is never mad. He's always terrific. That's why stay mad Sam

is not necessarily misappropriation of Justice Alito's likeness since it's about any Sam. Great point. Thanks also to Bella Puri, another law student who's been assisting us over the summer. Have a great summer, everyone.