Strict Scrutiny - Hysterical Lady Brains

Episode Date: May 24, 2021

Melissa, Kate, and Leah break down the recent cert grants, the oral argument in Terry v. United States, and the opinions in Edwards v. Vannoy, CIC v. IRS, Caniglia v. Strom, & BP v. Baltimore. They then workshop their reviews of Justice Breyer’s forthcoming book before highlighting some exciting Supreme Court-related book reviews. 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, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I'm Kate Shaw. I'm Melissa Murray. And I'm Leah Littman. And we have a jam-packed show for you today. So we will start with some breaking news on

cert grants from the court. We will then turn to the last oral argument of the term, perhaps the last telephonic argument of the pandemic. We will then break down the four most recent opinions issued by the court, and we will finish up with some court culture. So first up, cert grants heard around the world. Obviously, the cert grant that we're going to highlight first is what we think is a major development in the court's abortion jurisprudence, and that's the court's decision to grant cert in Dobbs v. Jackson Women's Health Organization. And this is a legal challenge to Mississippi's ban on abortion at 15 weeks of pregnancy. And first of all, I'm just going to say, there's been a lot of discussion and questions about whether commentators are being hyperbolic

and saying that this portends the end of Roe, I don't think that's hyperbolic. I think it is an open question whether the court will go whole hog and overrule Roe. But I think regardless, this is the beginning of the end of what we know as the Roe era. And so let's highlight a couple of interesting things about this grant. We have talked about this case before. We've noticed that it had been listed for conference many times over the course of this year, I think almost 17 times previously before this CERT grant, which suggests that maybe there was some infighting here at the court. I also think the fact that it was pending for so long on the cert list may suggest or give some more insight into some of those really sharp elbowed dissents from Justices

Sotomayor and Kagan about stare decisis over the last couple of weeks. They have both called their colleagues on the carpet for playing fast and loose with precedent, and perhaps this is why. It's also worth noting here that there was no circuit split on this issue. Every lower court that has reviewed one of these challenges to these so-called heartbeat laws has invalidated the law on the ground that they obviously contradict Roe and Casey. So I will also note, however, though, that even as those lower courts refused to uphold those laws citing Roe and Casey, they also noted that they were constrained by Roe and Casey. And so in some cases, there were concurrences from

particular judges inviting the court to take up this issue again and perhaps change precedent and make new precedent that would allow them to uphold these laws. And so the court took up that invitation. And Leah, I know you wanted to say a little bit about how the court has framed this question that it's going to review, because there were two options for how this question could be framed, one more narrow, one quite sweeping. And the court, not surprisingly, took the more sweeping alternative. Yeah. So I think this speaks to your question about whether people are being hyperbolic or overreacting to the cert grant, which we often hear time and time again when it is women and female Supreme Court commentators

suggesting that we have reason to worry about the court. And people are like, oh, we don't have to take seriously like you hysterical lady brains talking about the red robes. But, you know, part of why we are concerned is because of the question that the court chose to grant cert on. Mississippi had presented the court with several questions, and the question they granted cert on is whether all pre-viability prohibitions on elective abortions are unconstitutional instead of taking up the question about whether laws like this should be analyzed under, quote, the undue burden standard from Casey or the whole woman's health balancing test. And the reason why it's significant that they took up the viability question is because of how significant viability is to the law governing abortion restrictions right now.

So Planned Parenthood versus Casey, when it reaffirmed the right in Roe, said the core of the abortion right is that states cannot prohibit abortions before viability. That is literally what Casey said. The Mississippi statute conceivably does this. And that means, you know, the options on the table to uphold the Mississippi law are either overrule Roe and Casey or basically undo the viability line and say that even before viability, states can prohibit women from having abortions under some circumstances. And if they do that, then that will all of a sudden make real these questions about all of the pre-viability bans, like Texas's recently enacted ban on abortions after six weeks of pregnancy, or other states that enacted bans after 10, 12, you know, you name it, weeks of pregnancy. And that's why this is so significant. So I guess I would ask, you know, are any of you kind of surprised that the court took this case or took an abortion case

less than a year into Justice Barrett's tenure on the court? I was a little surprised they moved now to take the Mississippi case. I expected them to begin with one of these maybe so-called reason bans that, Melissa, you've obviously written a great deal about. Maybe another one of these either two-trip or waiting period requirements, these kinds of more conventional restrictions on access to abortion, but not an outright ban that is, you know, facially impossible to uphold while continuing to express the sort of continuing vitality in some sense of Casey. So I guess that more gradualist approach is the one I would have predicted. This decision to grant suggests to me that the maximalists on

the court have won out, at least at the cert grant stage, which, as we all know, requires four rather than five votes. So to my mind, one really big and important question is how many votes to Grant cert there were on this case. And I don't know if it was four or five or six. Melissa, what do you think? So I was slightly surprised, not necessarily because I did not imagine that there would be four to take this up now, regardless of the consequences. But the fact that the timing is really kind of terrible, like this case will be heard and likely decided around June of 2022 as we go into a midterm election. Sorry, y'all. Some people are doing some hammering at my house, if you can hear that.

But I actually thought that the political ramifications of this might have persuaded at least some on the court that, you know, maybe just sort of wait. It's not like you're not going to have this six to three conservative majority going forward. You know, like it's going to be hard for any Democratic president to undo this for a long time. So, you know, why not slow your roll? I'm surprised that they decided to take this up. And I think this goes to your point, Kate. The chief justice surely understands the timing. And I wonder if what we're going to see here is him joining the four who are certain votes, I think, maybe bringing Kavanaugh along with him, but keeping the opinion for himself to write something that is more narrow that maybe doesn't

overrule Roe explicitly, but creates a lot of confusion around viability and what the standard is going forward. And then after the midterms, you've got this pending case, which I'm sure is going to be appealed in preterm Cleveland versus Himes, one of those trade selection laws. And then you have the opportunity to just finish the job and there's no sort of political ramification for it. Yeah. In terms of sort of how thinking ahead to how the opinion might come out. Yes. I mean, I definitely, after giving it some thought initially thinking, well, look, I don't, and I still don't totally know where Roberts and Kavanaugh are going to come down. I agree with you

that four votes are not in any kind of question. But I actually do think that the most likely scenario is that Roberts joins the conservatives, keeps the opinion for himself, tries to write something moderate and measured, but then loses his majority because the four of them are unwilling to go along. And so he writes something joined by Kavanaugh, which he basically says, you know, look, Casey failed to sufficiently value the state's interest here. And maybe the lower court should take another look without, you know, kind of this incorrect viability line, but without really clarifying much. And then four of them say, no, we should just overrule it all. And then the lower courts and state legislatures have basically no guidance about sort of what the kind of principled dividing line between the unconstitutional and the constitutional restrictions are. And then it's just kind of

chaos, but it's a quiet, you know, it's quiet in a political sense. And so, and I think that then maybe then just sort of after the midterms, you're right, then they kind of come back with the sort of one-two punch. But it strikes me that's like a very confusing splintered result without a majority is the most likely outcome, I think, as I sit here. Yeah, I think that that's right a very confusing splintered result without a majority is the most likely outcome, I think, as I sit here. Yeah, I think that that's right. And I think that, you know, whether that, quote, narrow opinion says we undo the viability line and remand, you know, I think it will fall on people to explain why that is significant and particularly why changing the law, given the current composition of the federal court of appeals, is quite significant and what we know is going to happen when the court does that.

Yeah. Can we flag one more case that, you know, so we mentioned, I think, Leah, you mentioned the six-week ban that was just signed into law in Texas. But it's not only a six-week ban. It is one of the craziest pieces of legislation that I have ever seen in any realm, abortion or otherwise. But so it prohibits abortions after six weeks. But rather than actually creating a state mechanism to implement this prohibition,

it creates a private right of action giving any person anywhere the power to sue abortion providers or anyone who helps a woman obtain an abortion. So the plaintiffs need not have any connection whatsoever to the woman, to the abortion provider, to anyone else. And it is just like, it feels so shockingly unconstitutional in like a million different directions. I mean, do you know what it reminds me of? There is this whole body of case law pre-Roe, often brought by doctors and individuals in physicians' offices challenging prohibitions to abortion in this pre-Roe period because they didn't understand what they were liable for. And they brought a lot of these challenges as constitutional

vagueness challenges under criminal law. And it feels a lot like that. When people say we're going back to a pre-Roe day, this law totally looks like one of those pre-Roe women and basically take away their support network, you know, when they might seek an abortion or, you know, require some assistance in getting one. to private actors, then it's not clear who you name as a defendant in a pre-enforcement challenge in order to get the law declared unconstitutional and unable to be enforced, given some complications regarding the court's sovereign immunity jurisprudence that aren't worth getting into. But that portion of law is just, yeah. Yeah. And there were definitely Texas legislators who explicitly said that, like, oh, this is going to be very difficult to challenge. So this was, you know, this was part of the strategy, clearly. of a bunch of white men who treat the Supreme Court as a debating society of abstract ideas with no real consequences for people's lives. So tune in. And if we're right about how the decision shakes out, I am sure there will be a chorus of like, see, they didn't overturn Roe.

It's not so bad. How moderate. Well, again, like shades of June medical services when we were all like, this isn't great. And all of these men were telling us that, no, ladies, you're missing the point. It's fine. Take them all. Go lie down with a hot pad. Is it a hot? It's a heating pad.

Sorry. A hot pad is a totally different thing. This is like when I told my class, my husband and I like to Netflix and chill, and everyone was like, that does not mean what you think it means. Sorry. Sorry, kids. It's like when I said in our interview with Michelle and Robe, welcome to the red room.

Yeah, yeah. We're like, that's not what you mean. That's something else, Leah. But like you said, Leah, your house is outfitted for anything so the red room is like the sub-basement underneath the wine cellars also has a bar oh definitely yeah no that's the one thing they didn't put in. Okay. So speaking of not great cert grants, the court also decided to take up Shin versus Ramirez. This case is about whether the Anti-Terrorism and Effective Death Penalty Act's evidentiary limits, i.e. limits on federal court's ability to collect new evidence, apply to the development of facts that are relevant to the so-called equitable exception

from Martinez versus Ryan. So Martinez concerns a rule that's called procedural default in federal habeas. You generally can't raise a claim if you didn't raise the claim in state proceedings, but you can raise the claim if your failure to raise the claim in state proceedings was due to ineffective assistance of counsel. Because the Sixth Amendment doesn't actually guarantee you counsel in state post-conviction proceedings, which are often where litigants have to raise ineffective assistance of trial counsel claims, because where else could you bring them? So Martinez said that where a litigant has to

raise an ineffective assistance claim in state post-conviction proceedings, a state post-conviction lawyer performance can constitute cause allowing the federal court to hear the claim, thus excusing your failure to raise the ineffective assistance of trial counsel claim in state proceedings. So this case asks whether a federal court can hear any evidence besides what was introduced in the state proceeding to decide whether your case falls within the Martinez exception. Obviously, if you can't, it will be super hard to establish that you fall within the Martinez exception, given that ineffective assistance of trial counsel claims often depend on evidence outside the record, as do ineffective assistance of state post-conviction counsel claims. So this case has the potential to effectively overrule and render a nullity to the Supreme Court's decision in Martinez. And the last grant we wanted to flag was Badgerow v. Walters. This

case asks whether federal courts have subject matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the Federal Arbitration Act, when the only basis for jurisdiction is that the underlying dispute involves a federal question. There's a clear circuit split on this issue, and I think this was expected to be granted. So now to recap the final oral argument of the term and hopefully the last telephonic argument we will have for a while. The final oral argument was in Terry versus United States. This is the case about eligibility for resentencing under the First Step Act. To recap, Congress established drastic disparities in the quantities of cocaine powder versus crack cocaine

that trigger mandatory minimums of five or 10 years. Congress in the Fair Sentencing Act of 2010 lowered the quantity of drugs that triggered the mandatory minimums. And the question in this case is whether people sentenced under one provision, Section C, which governs unspecified amounts of cocaine, could be resentenced under the First Step Act. Everyone agrees that people sentenced under Sections A, which establish a mandatory minimum of 10 years, and Section B, which establish a mandatory minimum of five years, could be resentenced. The First Step Act allowed people with cover defenses to be resentenced, and it defined cover defenses as a violation of a federal criminal statute, the statutory

penalties for which were modified by Section 2 or 3 of the Fair Sentencing Act. The government had switched positions in this case to agree with the defendant that people sentenced under Section C could be resentenced under the First Step Act. Adam Mortara was appointed amicus to defend the decision below, and it was a bloodbath for the defendant and the government. There's, I guess, no question from my perspective that the court appointed amicus's position is going to prevail. The only question is whether it's going to be unanimous. At argument, you know, the justices seized on a few textual points that seem to support the amicus.

As several justices noted, the ordinary usage of statutory penalties means sentencing ranges that a defendant is subject to. But obviously, that can't be the end of this case because the sentencing sentences still impose mandatory minimums of, you know, five or ten years. It just changed who was subject to those mandatory minimums by altering the minimum quantity of drugs that triggers them. Court-appointed amicus explanation was statutory penalties for violation of a statute include the elements of the offense, the things the government must show to convict you. That hasn't changed for Section C offenders, but it has changed for Section A and B offenders, again, because the mandatory minimum changes depending on the quantity of drugs that an individual has. And the statutory ranges have also changed for some offenders. If you possessed a quantity of cocaine that was subject to a mandatory minimum of 10 years, but it's now subject to a mandatory minimum of five, your sentencing range has changed. But again, for people who were sentenced under Section C,

their sentencing ranges haven't changed. Okay. So at argument, I kind of wondered if some of the justices might just have forgotten there was an argument on this day. Are we thinking about the same episode, I think? Are you talking about the Len Bias thing? That's one of the things that I am thinking of. No, yeah. So let's play the Len Bias clip that both Melissa and I are thinking of. Two is the history of the disparity, the crack powder disparity.

This all kind of stems to June 1986 when Len Bias died. And that was a shocking event, particularly in this area, particularly for those of us who, you know, I was a year younger than he was, looked up to him like everyone in this area did. And that was a shocking event in this area and ultimately in the country at large and prompted Congress, along with other things, but that was really the proximate cause of Congress moving to establish the 100-to-1 ratio, even though that was a powder situation in the land bias situation, the 100-to to 1 disparities ushered into the law. What to say? I mean, so to me, this was a whole frolic. And it was wild, I think. So it's true

that Len Bias's death was shocking when it happened at the time, it was in the 80s, late 80s. And it did call more attention. It wasn't the first thing that called attention to it, certainly. I mean, we'd all seen Miami Vice. But it called attention to the deleterious impact of cocaine. But I don't know that I would characterize it as the fulcrum around which the push to penalize cocaine or to penalize crack cocaine more heavily than powder cocaine really turned. And it's also worth noting, which Justice Kavanaugh eventually did note in the sort of offhanded way, Len Bias's overdose was from powder cocaine, not from crack. So it was just like this weird, like non sequitur, but that was semi related, but not really. And I just

didn't know where we were going other than it was a lens into Justice Kavanaugh's high school days on a basketball team. There's just a lot of basketball. Yeah. And so it was partially that, you know, the lot of basketball that stuck out to me, Melissa, because it was also in oral argument from another case during the sitting, Mahanoy, that we talked about when Justice Kavanaugh also brought up basketball and specifically, you know, a player who will. Why don't I just play this clip and then I'll I'll comment on it. So here we go. And just by way of comparison about and to show how much it means to people, arguably the greatest basketball player of all times inducted into the Hall of Fame in 2009 and gives a speech. And what does he talk about? He talks about getting cut as a sophomore from the varsity team. He wasn't joking. He was critical. 30 years later, it's still it's still bothered him.

We noted, Kate, on the recap episode that Lisa Blatt in her response did bring up Michael Jordan, but Justice Kavanaugh was obviously referring to him, didn't name him by name. And I guess, you know, the Len Bias example is one thing because that was actually from the briefs. You know, some of the briefs did talk about the Len Bias incident. It was something else for me, for Justice Kavanaugh to make an allusion to the greatest basketball player who ever lived and some events that obviously that's not discussed in the main party briefs in Mahanoy. And so if you're an advocate and a justice asks you, you know, this reference to basketball and you don't know it, like, what are you going to Taylor Swift's sexual assault case?

And it was obviously a permissible answer was no, and she wasn't presuming anything. And that was just not the vibe from this Justice Kavanaugh thing, which is like, let me reminisce and show I know a lot about basketball. Just not my vibe. It's such a great point to draw that contrast. If Kagan had just opened up by saying, what was the actual harm to Taylor Swift that underlay her lawsuit? If an advocate was unfamiliar with the sequence of events, like that just would have been an unfair question to pose. And so I think you're right. It is like, it is respectful and doesn't presume an entirely shared vocabulary or set of references in a way that I appreciate and that I'm not sure just even crosses Kavanaugh's mind. And I look, I mean, Michael Jordan is going to be a figure known to most people.

And in some ways, like, but are people familiar with his Hall of Fame speech in particular? Definitely not. Or at least not everyone. In which he called out his, you know, like high school coach for cutting him. Like, that is not something I would think everyone is familiar with. No, definitely not. Yeah. I do know who Michael Jordan is. But yeah, I don't know anything about his Hall of Fame. Even before the documentary. I mean, I love the documentary and I loved how he was just like petty LaBelle. Like,

and I took that personally and I was like, here for that. That's amazing. I just thought the whole unbiased thing, I mean, it was interesting to me because I remember it growing up, but it also just didn't seem to be on point. And so it was sort of introducing something that, yeah, maybe it was in the briefs and people were talking about it and that's fine, but it did seem like very specific kind of knowledge, but that didn't actually match up with the point of this case. Like that death was about powder cocaine and not about crack cocaine. And it just didn't make any sense. Yeah. And it was partially that that made me wonder, like,

were they preparing for this argument? You know, it was that question that was just like, here's a random speech about something that's like incidentally related, but not actually relevant to deciding the question. The chief justice also asked, you know, his first question was whether under the defendant's theory, absolutely everyone who's sentenced for non-cocaine offenses had to be resentenced. And no one is arguing for that. And it's not even clear how that would be a possible implication of the defendant's position. Justice Barrett asked whether for someone who was sentenced under Section B, if they had to receive a new sentence on remand or at resentencing, obviously they don't have to, right? Like their sentencing range is still the maximum that is established by the statute and that maximum hasn't changed. Justice Gorsuch asked no questions. This is a case about statutory

interpretation. Like, why wasn't he ready with his burn book? It was just, it was perplexing to me. It was like, again, did you forget you had delayed this argument and then it was happening, you know, the week after you thought you had finished? Well, but Leah, you know who brought his A-game to this argument? Who? Your boy. Wait, but Leah's boy could be either Sam Alito or Adam Mortara. You have to clarify which one you're talking about. I actually met her other

boy, SGB. He was ready and he had lots of questions. Leah has so many boys, like a stable of boys. If anyone ever refers to Sam Alito as my boy, except for the two of you, I will be a little concerned. For all those people saying that he should retire, he was just like, I got questions, and I'm not afraid to ask them. And he seemed genuinely on the fence, both about the practical implications of this and the broader discussion about what this would mean for statutory interpretation. I mean, he seemed genuinely perplexed. Yeah. So Justice Breyer, more than anyone, understood kind of the mechanics of this case. So he understood better than anyone how the

relevance of the career offender guideline mattered here. I won't go into an in-depth explanation. And not surprising given his work on the sentencing guideline. No, not surprising at all. But that was super important to understanding like how people who were sentenced under Section C had their sentences determined. And no one else besides Justice Breyer seemed to understand that. We did want to highlight one exchange that was, I think, a little bit awkward. And if it ends up being Justice Breyer's last question at an oral argument, I might be a little sad. So why don't we just play this clip here? Why did the government argue what it argued? They know these as well as I do. Probably better. Your Honor, I am here to explain many things. The behavior of the United States government in this case is not one of them. One other sort of interesting thing I think to highlight in the case is that the Solicitor General's office, as Leah mentioned at the outset, switched positions in this case. And the Chief Justice began his questioning of Eric Fagan, the Deputy SG, by kind of asking him about the change in positions. And so the Chief asked, is it just that you think the position, the prior position is wrong and you would have reached a different one? He's essentially just sort of saying, tell me about what the standards for a change in positions really look like right now.

It was a little conspicuous, I think, to press the Biden Solicitor General's office, where the chief really hadn't done that in the Trump administration, in spite of a number of changes in positions. But so Fagan sort of, you know, was a little bit caught off guard by the question, it seemed. And he basically said, well, Your Honor, I don't know that we have a specific set of procedures or guidelines that I could kind of publicly share. But it almost sounded like he, I mean, at the beginning of the answer, he really seemed to be saying like, oh, we don't have anything. Like we just kind of make it up as we go along and then sort of finish the sentence

with that we could publicly share. Surely there are guidelines and procedures. And I just felt like it was kind of a missed opportunity to just to say something like, we take these seriously, right? We give them real thought and care and we don't do it cavalierly because I think it just, you know, I think you could say that much without revealing like the trade craft of the Solicitor General's office. You could do that. And I think sort of shut down any follow-up questions effectively, but he ended up just sort of sounding like the SG's office, just like kind of making it up as it goes along, which I think is not a great look. I would have loved it if Fagan could have repurposed the amazing, I must decline your invitation for

secret reasons response. I must decline to answer your question. We have secret reasons that I cannot disclose. That would have been. I can tell you, but I would have to kill you. Sorry. So now we have a special message from extraordinaire, would like to shout out Tyler Lee for being a legal superwoman, law clerk extraordinaire, and the love of Will's life. Thank you for being such a perfect partner. I know. This shout out is going to – it's just great. So Will would also like to shout out the Michigan Law Class of 2023 Section MNOP.

This is a section I taught. I can attest they are great for making this, this being online, virtual, hard, and choose any relevant adjectives that may apply, first year of school, an incredible one. You all rock. To mom and dad, Dottie and Peter Jankowski, and the rest of the Jankowski clan, Jack, Charlie, and Kate, for giving Will absolutely everything anyone could wish for in a loving family. And last, but certainly not least, to Juno, the Jankowski family pup. And to Stevie Nicks, my dog, who Will is confident will be Juno's best friend. I hope you're listening, Stevie.

If that doesn't warm the cockles of your heart, I don't know what will. My cold, dead heart is literally springing back to life, Will Jankowski. You've touched my soul. Really? Touched my soul. That was really lovely. All right. So let's move on to opinion recaps.

We got four opinions last week. None of the huge ones we've been waiting for, but some very important opinions nonetheless. So let's try to march through them as quickly as we can. The first is Edwards v. Vannoy. In that case, the Supreme Court held that Ramos v. Louisiana is not retroactive. So Ramos, recall, held that the Sixth Amendment requires states to obtain criminal convictions via unanimous juries, right? So non-unanimous juries will not do. So that was the holding of Ramos. Ramos relied pretty heavily on the fact that some of the non-unanimous jury rules were first adopted for explicitly racist reasons. So in Louisiana, these rules were adopted during Reconstruction in an

attempt to dilute the power of Black jurors, to disadvantage Black defendants. And Oregon, which had been previously the last other state to permit non-unanimous juries, the non-unanimous jury rule was adopted based on anti-Semitic, anti-Catholic, and explicitly xenophobic reasons. So going into the argument in Edwards, and really afterwards, it is not that surprising that the court said that Ramos was not retroactive. Generally speaking, new rules of criminal procedure are not deemed retroactive. That general kind of default rule has historically been subject to two important exceptions, although that is now really down to one important exception. We will get there. But historically, the general rule of non-retroactivity was subject to an exception where a new substantive rule was announced. So new substantive rules were deemed to apply retroactively. But this unanimity requirement is not a new substantive rule, right? It doesn't hold that certain conduct can't be punished or that certain offenders can't be subject to particular punishments or that a criminal statute is invalid. So that takes us to the second exception. So historically, the second exception has existed for what are known as new watershed rules of criminal procedure that affect

the likelihood that an innocent person has been convicted. So in my own personal view about what a new watershed rule of criminal procedure is properly understood, I think Ramos would qualify. But under the court's cases, it was an uphill climb. In particular, the court had said that the jury trial right itself, the right to have a jury find the elements of an offense, was not retroactive. So that was the Supreme Court's decision in Apprendi v. New Jersey. And other decisions, too. Indeed, the court has never found a new rule to be a watershed rule. It has said the only rule that would qualify is Gideon v. Rainwright, the decision announcing that defendants have a right to counsel even if they cannot afford one. But the majority could have stopped there and just said that, but it

actually went further. And it says that Ramos doesn't qualify as a watershed rule because the right to a jury itself didn't qualify as a watershed rule. And the court basically decided to just wipe out a bunch of federal habeas and retroactivity doctrines while it was at it and said that there are no procedural rules that are retroactive. Put differently, there can be no watershed rules of criminal procedure that could be announced that would apply retroactively. And the exact quote is, new procedural rules do not apply retroactively on federal collateral review.

The watershed exception is moribund. It must be regarded as retaining no vitality. And so that's some big stare decisis is for suckers energy. Yeah. This is like my personal bad place, like Brett Kavanaugh messing up federal habeas by showing no regard for the court's precedents. And aside from that, the analytical path that the court's precedents. And, you know, aside from that, the analytical path that the court took to get there just didn't make a ton of sense to me. So

the court basically said, look at our prior cases that declined to find watershed rules. That's evidence that no watershed rule exists. Like, that just isn't how logic works. We have never found a rule to be a watershed rule, therefore it doesn't exist. And Justice Gorsuch's concurrence even more pointedly relied on that logic. And I just think it takes a fair amount of hubris to look around at the world around you, and in particular, the criminal justice system, and think there are no watershed rules that we have yet to enforce that affect the likelihood of an innocent conviction. You know, and the court just unnecessarily and aggressively closes the door for any future rules of criminal procedure. It's just, why do that? So there was the concurrence from Justice Gorsuch, which, as you said, reiterated, I think, the questionable

logic of that whole line of argument. But then there was this incredibly fiery, sharp dissent from Justice Kagan. And it's worth remembering that Justice Kagan, perhaps uncharacteristically, was in the dissent in Ramos. And we speculated last year that she was in the dissent because of the fact that Ramos really reflected a departure from established precedents. And she was sort of hewing with Justice Alito and the Chief Justice in order to preserve the whole idea of stare decisis and to maintain fidelity to that. But in this opinion, Justice Kagan really lit up the majority. She dissented and she was joined, not surprisingly, by Justices Sotomayor and Breyer. And Leah, I think, do you want to issue another invitation to her?

I think it's important to underscore that Justice Kagan is invited on strict scrutiny to discuss not only nominal damages, but also retroactivity and federal habeas. Many options, take any of them. And Taylor Swift. And Taylor Swift. I will just note, we've invited her a million times. And now I just, it's beginning to feel a little bit like when Harry met Sally, when Marie notes that the guy she's dating is never going to leave his wife for her. And Sally says, you're right, Marie, he's never going to leave his wife. And she's like, I know, I know. Like, I feel like we're doing that. Like, she's never going to come on the show.

As Justin Bieber would say, never say never. Okay. Gotta be a believer. Don't do that. Okay. I'm going to go cleanse myself after this. Okay. All right. Okay. First of all, what does she do here? She literally uses the master's tools to dismantle this house. So first she takes all of the soaring rhetoric that was deployed in Ramos and she turns it against them. So she says a verdict taken from 11 is no verdict at all. That was the note that the court proclaimed last term in Ramos. And then she notes that citing centuries of history, the court in Ramos termed the Sixth Amendment right to a unanimous jury vital and essential and dispensable and fundamental.

And two concurring justices added to support discarding this egregiously wrong precedent that the unanimity rule prevents improper verdicts. If those words mean anything, it must mean that this decision in Ramos was so pivotal, so fundamental, such a sharp departure that it must count as a watershed rule. And I think that's probably right or else those words, as she put it, are just a lot of words. Yeah. She also continued Dracarys, like Dracarys. Elena Targaryen coming in on a dragon and just like blowing up King's Landing. So she wrote, the majority argues in reply that the jury unanimity rule is not so fundamental because, well, no, scratch that. Actually, the majority doesn't contest anything I've said about

the foundations and functions of the unanimity requirement. Yeah, was there for that. She snatched a wig. Snatched a wig. And then she went on to characterize the two moves the majority made in response to her dissent, quote, call the first, throw everything against the wall, call the second, slice and dice. And Kavanaugh, right, did not like let Kagan's dissent just sort of stand unanswered and took the sort of bizarre tactic, I thought, of suggesting that Kagan should not be heated here because she dissented in Ramos. Right. And she just sort of says, like, look, Ramos is the law. Storia decisis is now on its side. I take the decision on its own terms. I give it all the consequences it deserves. Like, what are you talking about? principles and will apply cases as their reasoning suggests, even when I disagree with them. No, you're supposed to stay mad, right? It was just such a bizarre, like, Kavanaugh kind of telling on himself, I thought. And then the defensiveness of him saying, look, the criminal defendants are, as a group, better off under Ramos and, you know, even if not retroactive per today's decision than they would have been if Kagan had her way.

So she did not let that go unanswered. She said, this suggestion is surprising. It treats judging as scorekeeping and more as scorekeeping about how much our decisions or the aggregate of them benefit a particular party. So no one gets to bank capital for future cases. No one's past decisions insulate them from criticism. It's just like,

you go, Elena. Yes. There's another opinion here I wanted to call attention to. So this is Justice Thomas's concurrence. And, you know, I just, I think we really have to call out, he does this a lot. Justice Thomas puts away seed corn for the winter. And he kind of just lays a foundation to take another frolic somewhere else and do even more stuff in the future. And he kind of just lays a foundation to take another frolic somewhere else and do even more stuff in the future. And so in this concurrence, he says that the court could have rejected this claim because when the state courts adjudicated it, this wasn't unreasonable. And he opens up the possibility that the court will say that EDPA doesn't actually codify Teague's exceptions or what is now an exception for substantive rules.

So this is focusing on procedural rules, but he's laying a foundation for dealing with the substantive rules later on. He does this all the time. Again, that was a big one. I think this one, the next opinion coming up is also big, although I don't know that people quite understand it to be as monumental as it is. And that of course is in BP versus Mayor and City Council of Baltimore. So this is a case about federal removal jurisdiction. So in this case, the question was about the circumstances under which individuals could remove their cases from state court to federal court. And the Supreme Court said, in this opinion opinion that appellate courts can review other grounds for removal besides whether a defendant was acting as a federal

officer, which the statutes provide a special exception for appellate court review. So this arose in the context of a major climate change case in which our former strict scrutiny guest, Sheldon Whiteboard Whitehouse, filed a big brief explaining the real stakes of this particular procedural issue. But the fact of the matter is that the oil companies wanted this case to be heard in federal court because they believed that it would be a more hospitable venue for them. And this decision actually makes it easier for them to litigate their cases in federal court because it allows defendants more bites at the removal apple for getting their cases into federal court.

So basically, if a district court had previously said, no, you cannot remove this case to federal court, the only basis for federal appellate review would be to decide that the case could be removed to federal court because the defendant was a federal officer. And in this case, of course, the oil companies are not, although they are actually heavily regulated, but they're not federal officers, so that doesn't apply. Now the court has explained that appellate courts can review any ground for removal, including whether federal common law governs these climate change suits, which, again, gives these companies, these defendants, more opportunities to remove their cases to federal courts. To my mind, you know,

this holding creates the potential problem of gamesmanship. You know, what is to stop defendants from including the argument that this case can be removed because they're a federal officer in their removal notice or briefing, even when it's obviously the weakest argument and not even a super plausible one. The court dismissed that concern as a policy argument for Congress to consider and noted the possibility of sanctions, which of course, courts are just super reticent to impose, particularly on private litigants. So that didn't seem to me to be that meaningful of a deterrent. Yeah. And sort of moving from substance to style, this is a Gorsuch opinion. It's a statutory interpretation case. So of course, there was a lot of overwrought prose that included a sprinkling of

faux judicial humility toward the task of interpreting Congress's handiwork. So they're just like a couple of nuggets I will read. I feel like we need to cast someone. Like I think we need like an occasional guest host who could actually voice Gorsuch for these segments. I don't know. We should give some thought to like how we would make that happen because I don't feel like I'm really up to the task of doing it justice. But he said. Regé-Jean Page. Oh, he's looking for a new gig. This is a great idea. Yes, please. Look, and I'm sure Justice Gorsuch would love to be portrayed by such a fine actor. So really everyone wins in this situation.

We could just like have a whole show where Reggie Jean-Page reads Bostock to us by candlelight. The whole thing. Oh my God. I feel like maybe Shonda should just make that, right? Yes. Bostack slash Bridgerton. Okay, so I obviously cannot do this now.

Why am I here? I guess I'll try. You better. Look, he said... Okay, I'll do it. You do it, Melissa. Step in. Exceptions and exemptions,

right, like that. I was going to give that. All right. All right. Do it. Exceptions and exemptions are no less part of Congress's work than its rules and standards. And all are worthy of a court's respect. I burn for you textualism. Often lawmakers tread in areas fraught with competing social demands where everyone agrees tradeoffs are required. Whatever the reason for a legislative compromise, we have no right to place our thumbs on one side of the scale or the other. Daphne. Often lawmakers. Lady Whistledown.

We'll just insert comma Daphne after all of Justice Gorsuch's burn book phrases while we read them before. We're going to change it to the I burn for you book. It's not a burn book. It's an I burn for you book. That sounds good to me. So Justice Sotomayor dissented in the case. Justice Alito did not participate, likely because he was recused. And this is also a case where there was discussion about whether Justice Barrett would recuse because I think one of her relatives was employed by a VP affiliate.

Yeah. And she did not. Yeah. So other case we wanted to recap, CIC versus IRS. In this case, the court found that a challenge to an IRS notice, a reporting requirement, the violation of which would carry statutory tax penalties, was not barred by the anti-injunction act which says no suit for the purpose of restraining the assessment or collection of any tax shall be maintained and here if successful the suit would preclude collecting tax penalties for violation of the regulation given that the regulation is being challenged but the court says that's not barred by the anti-injunction act because the challenge notice is punishable by criminal penalties and imposes its own affirmative reporting obligations and And so the court seems to say, like, in function slash effect, this is, you know, an affirmative command slash regulatory

mandate, not a regulatory tax. And again, like, that's kind of a squishy distinction that is not mentioned in the Anti-Injunction Act and yet did not prompt any textualist temper tantrums. Kate, the last case? Yeah, last case. All right. So this was a brisk four-page unanimous opinion. Can I stop there? Because it bothered me that this is four pages because the windup for this case was so incredible. I mean, the oral argument here, we were just made to listen to a million different hypotheticals about elderly women on the floor because they'd fallen and they couldn't get up, cats in trees, bubonic plague-infested rats, priceless works

of art being damaged by overflowing bathrooms. And then we got four pages. I just felt like we deserved more. And the lawyer who was pummeled with those hypos did not walk out of the argument or shut off his phone or whatever, expecting a unanimous win, I don't think. It really was an interesting illustration of the sometime divergence between the impression coming out of an oral argument, at least in this format, and the result. Now, we should say that it was, you know, it was unanimous, but with a couple of concurrences that made really explicit that the case was fairly narrow in terms of what it did not resolve or tackle. But basically, in terms of what the four pages did hold, the court in this Thomas opinion says that the community caretaking exception does not allow police officers to enter

homes and seize people's belongings without a warrant. So that exception that the court sort of referenced in passing in a car case, right, the kind of caretaking exception, which involved like police officers towing cars and then searching those cars, the kind of caretaking exception, which involved like police officers towing cars and then searching those cars, the court said that exception does not apply to the context of entering homes, at least on these facts, right? So as I mentioned, right, there are a couple of short concurrences that say that there are other kinds of exceptions to the Fourth Amendment's warrant requirement that might apply. So what the court is not saying here is that you can never, ever enter a home without a warrant. Clearly, other kinds of exigencies

might apply in a couple of the different concurrences, one by the chief and Breyer, you know, highlighting that preventing violence or giving emergency aid might justify deviating from a warrant requirement. Alito, you know, writes separately to kind of gratuitously mention red flag laws, maybe raising questions, even though that was really pretty far afield from what this case involved. I mean, I thought what was interesting about his concurrence is like he really sort of centered this prospect of assistance to the elderly, like the chief justice question concerns an important real world problem. Today, more than ever, many people, including many elderly persons, live alone. Many elderly men and women fall in their homes or become incapacitated for other reasons, and unfortunately, there are many cases in which such persons cannot call for assistance. In those cases, the chances for a good recovery may fade

with each passing hour. So in the Chief Justice's imaginary case, if the elderly woman was seriously hurt or sick and the police heeded petitioner's suggestion about the Fourth Amendment demands, there is a fair chance she would not be found alive. This just went to a very dark place. And so what is going on here? I mean, is this a court of individuals, you know, past 60, like getting AARP notices, just like really worried about what it is like to be an elderly person in the United States? I mean, I genuinely ask as someone who is also becoming an elderly person, it just felt like this, this felt very personal. It just got very personal there, Melissa.

No, yeah, no. Clearly not becoming an elderly person, Melissa. Let me just like, I gotta refute that part. I mean, I'll reiterate my praise of Justice Alito's skincare regime. The man is turning 71 this year. You would never know it. He has a quite youthful visage. But I mean, this really went to a dark place.

This imaginary woman may have regarded her house as a castle, but it is doubtful that she would have wanted it to be the place where she died alone and in agony. Like, Jesus Christ, like what a picture. Well, so a part of me wonders if this is a dynamic in the Fourth Amendment cases that we've seen before, which is the justices' views about their own personal situation and experiences and likelihood to encounter different forms of, you know, state action influences their perception of Fourth Amendment cases. So, for example, in Jones or in Riley, where we are talking about surveillance, which they

might perceive themselves as potentially falling victim to, they're quite concerned about Fourth Amendment rights, whereas other types of, you know, police investigative work, they are much less concerned about. And here, Justice Alito, you know, might be imagining, you know, himself or someone he knows in a situation that would require police assistance. You know, I don't know. It's so striking that you say that because it reminds me of Justice Scalia's opinion in that Fourth Amendment case about the lady in her bathtub and the heat wave surveillance. I don't think he was worried about him, but like the prospect of his wife being surveilled while in the bath or something like that.

Yeah, I thought the whole thing was very interesting and it felt incredibly personal, like dying in agony in her castle. It was just like, this is really macabre. No, and it also just like I think highlights so sharply how opportunistic and inconsistent the justices are in crediting the relevance of these kinds of pragmatic concerns. Like there are moments when Gorsuch will say, and you know, maybe he'll have a majority for the position that the fourth amendment essentially and only means and protects what it did at common law at the time of its adoption. And then sometimes I think they are very open to these kinds of concerns that touch their own experiences or fears or the kind of context in which they're living and embedded. And it's just like they – and they should.

Like I certainly want to embrace their ability to do that. But it just – it frustrates me to no end that many of these arguments unfold as if the only thing that matters is kind evidence at the time from the time of the adoption of the Fourth Amendment. It's nuts. All right. So should we turn to court culture? Yes. There's a lot to cover this week. So first, the book release heard round the world. So I hope he got a two million dollar advance. I think he would have written this for free. This week we learned none other than Justice Stephen Breyer, who may no longer be my boy, will be releasing in September a book called The Authority of the Court and the Perils of Politics. A few points worth talking about this book release. First is, you know, the book release describes him as a sitting justice for a book release in September. I don't think that's that particularly significant, given that, you know, they're not going to announce before he might

have announced his retirement, you know, that he might be a retired justice in September on this book release. So I didn't put much stock in that. I was more concerned about the substance of the book, to be honest. One particular passage in the, you know, squib says the peril facing the Supreme Court comes less from partisan judges than from citizens who encouraged by politicians equate impartial justice with agreeable judicial outcomes. You know, where to start about all of this, you know, first is I just think it's a bad look, you know, for justices to be like the problem in a democracy is citizens. Second, to suggest that citizens are somehow being misled or not smart enough to read into, you know, what politicians are saying about the court or about the court's work itself. And then third, you know, what politicians are saying about the court or about the court's work itself.

And then third, you know, for a pragmatist to suggest it is somehow wrong to think about outcomes. I mean, come on, guy, come on. And this is like the like G rated version of my thoughts on the book. Stay tuned. Do you think he'll go on a big book tour? If he is not retired and he attempts to go on a book tour, I can't say he will not get shouted at.

Like, that would be... I can say he will get shouted at. I can say he will definitely get shouted at if he does that. Yeah. I think we just hope that the blurb... I mean, first of all, we hope that the timing description is just kind of like people write marketing copy without giving it the utmost care and thought. So I agree with you. We can discount that. But hopefully the blurb does not accurately capture what is a more sophisticated rumination on the complex interplay between law, the courts, and politics. Who knows? But yeah, this little bit that we saw was not at all encouraging, both about the quality of the book, but also about his likely short-term plans.

Regrettably, we cannot extend an invitation to him to join us to discuss the book because we've already extended our book invitation to Megan, the Duchess of Sussex, to come talk about revenge. Well, but if he is actually finds himself with a totally open calendar next fall, then I think we could consider issuing an invitation, right? With more flexibility on his end, I'm sure we could make something work. I mean, who knows?

We could even give him the chance to read some passages from Justice Gorsuch's opinions together with Regé-Jean Cage. Right. I mean, like, talk about a bit. Right. Oh, my God. Like that is a pairing that even Shonda could not come up with. So good. So terrific. The new McDreamy, Stephen G. Breyer. I love it. I love it. I love it. OK, so let's move on to a couple of other court culture matters. First, this is now like a week and a half old or so, but we haven't had a chance to talk about it. So we thought we would briefly mention the new McKay Coppins piece on Justice Kavanaugh. The title of the piece, which ran in The Atlantic, is Brett Kavanaugh out for revenge. So this was this long reported piece about Kavanaugh. I didn't think it broke a ton of new ground, but I thought it contained a couple of interesting nuggets and

a few kind of like weird moments. So interesting nugget one. So we learned from the profile that Brett Kavanaugh has long been like a John Roberts fanboy, that he had a big picture of himself and John Roberts in his D.C. circuit chambers, that a friend told Coppins that Brett idolizes John Roberts. So that's sort of interesting backstory about kind of what he was coming into his relationship with Roberts sort of already carrying. Additional detail that I thought was interesting about the kind of chilly or at least distant relationship between Kavanaugh and Gorsuch. I mean, we've all heard sort of things to this effect. I called this.

I called this. Well, and I feel like we kind of knew that, like, they weren't friends. I mean, they were a couple years apart at Georgetown Prep. They just, people did not think they were ever friends, and maybe that there was actually kind of tension or bad blood. But Coppins is like, they were very different, like, high school archetypes. You know? Neil Gorsuch is a Virgo. He is not here

for Brett Kavanaugh's messiness. I'm sorry. I know of what I speak. So Coppins doesn't get into the astrological underpinnings of any of this, although maybe that does explain it. Oversight. But he basically does say, look, Kavanaugh was kind of this like frat boy who was organizing beach trips for his friends. And Gorsuch was, and this is quoting Coppins here, a know-it-all prig who's like too busy with the debate team, probably didn't get invited to said beach trips. Big Virgo energy. That's such big Virgo energy. He was working on his I Burn For You burn book on textualism, right? It takes time.

That's right. You cannot get that burn book sandy. You've got to keep that intact. So, yeah, I also just thought like so it described Kagan in like kind of clumsy terms or something in terms of what he thought was sort of her attempt to cultivate a real relationship with Kavanaugh in a way that just like I thought was probably not fair to her, right? This kind of suggestion. He basically, so he says he quotes someone, one person who has knowledge of the court's internal dynamics as basically reporting to him that Kagan saw Kavanaugh as up for grabs and like launched a charm offensive. And there's like one person familiar with the court's internal dynamics as like somehow having some insight into Kagan's internal motivations.

It's like the three of us have knowledge of the court's internal dynamics. Like Coppins couldn't, I mean, like maybe somebody speculated that was what was going on, but it strikes me that it's probably more complicated than that. Sort of the Kagan-Kavanaugh relationship, similarly the Sotomayor-Kavanaugh relationship. He just made them all out to be, I think, more calculating or more exclusively calculating than is fair. It's the calculating part that I think is weird because, you know, we've seen in other contexts justices welcoming a new member of the court, even when that person has joined under quite, you know, complicated and controversial circumstances. So Evan Thomas talks about Justice

O'Connor going out of her way to welcome Justice Thomas to the court. You know, Justice Ginsburg said nice things about Justice Kavanaugh, and it wasn't calculated. I mean, like, you know, they have to work together in a closed environment. And to my knowledge, none of them were raised by wolves. And so they're just polite to each other. I mean, I don't know that I would necessarily attribute her being collegial as, you know, an attempt to kind of cultivate a relationship for, you know, purposes of swaying his vote. Yeah. Anyway. We also wanted to talk about Professor Lisa Heinzerling's book review of Professor Richard Lazarus's The Rule of Five, Making Climate History at the Supreme Court, a book about the Supreme Court's major climate case, Massachusetts versus EPA. The review was published in the Michigan Law Review and is titled The Rule of Five Guys.

So it's in part of interest because it's about the litigation history of Massachusetts versus EPA. But we also wanted to highlight the review because it is also about or has some important reflections about the way we talk about the Supreme Court and the people involved in it. So Professor Heinzerling says the costs in the book are a deficit in critical judgment and a surfeit of gender traditionalism. The deficit manifests in Lazarus's unalloyed reverence for the Supreme Court and apparent resistance to critiquing its work. And a frank acknowledgement of the gendered character of the men's club atmosphere of the court is lost in Lazarus's romanticizing. She talks about, you know, her experience in the case as, you know, she sensed a gendered dimension, having word by word edits of the brief, you know, wrangling over oral argument in which she was kind of told to go through this one procedure so she could do the oral argument only to have the oral argument snatch snatched away from her. And then, you know,

having an office attempt to, you know, refuse to pay her. She says, you know, I said I sensed a gender dimension and no one ever said anything overtly sexist, but that just seemed to be what was happening. So I just think it's a super important review about, you know, subtle gender dynamics in people's accounting about what happens in litigation, also accounting of the Supreme Court's work. And so, you know, I'd recommend it for that reason. Yeah, it was a gutsy review, right? I mean, I think Lazarus and Heinzerling were colleagues at Georgetown before he went to Harvard. And, you know, I think a lot of people in the Supreme Court orbit and, you know, law

school and legal academia in general have read, I will say just speaking for myself personally, I've, you know, really taken seriously, cited a lot of Lazarus's work. He, you know, wrote a lot of important pieces sort of shedding light on the kind of on the insularity of the kind of elite Supreme Court bar in a way that really did bring a critical lens to it. You know, he also sort of brought to light the court's practice until recently of quietly revising drafts of its slip opinions after issuance, but before kind of final publication of the opinion. So he is able to bring a very critical lens to a lot of dimensions of Supreme Court practice. But a lot of the Heinzerling account sort of takes a correctly expansive view of the kind of subtle mechanisms by which

sort of sexism still manifests like she really does. Yeah. And I just wanted to highlight the conclusion from Professor Heinzerling's review, which is so relevant to life and, you know, things this last week, every week. So she writes, many challenges facing women today come subtly, not overtly, and they come from men who may mean no harm. And yet they keep coming. It is just a phenomenal piece of writing. It's a terrific review. Let me just say, Leah, kudos to your students because this book review issue is a tour de force. There are so many fantastic... I mean, it's always really good,

but it's chef's kiss this year. So let me just call out a couple of other outstanding pieces that are in this issue. There's Sean Osei Owusu, who's an assistant professor at Penn. He has a terrific review of Corey Robbins, The Enigma of Clarence Thomas, which we have covered on previous episodes of this show. His colleague at Penn, Karen Tani, has a review of Nate Holdren's Injury, Impoverished, Workplace Accidents, Capitalism, and Law in the Progressive Era. That's fantastic. But my favorite, favorite, favorite piece of this volume is Heidi Bond's fantastic Pride and Predators, which is an unbelievable read on Jane Austen's classic Pride and Prejudice. I love Pride and Prejudice, and I've often had misgivings about how to think about this

book that she just really captures and even goes beyond in so many ways. So it's an absolutely fantastic volume and well done, Michigan, on doing all of this work and providing these really fantastic perspectives on books that I think are really interesting. And in some cases, the review may be more interesting than the book, but I'm glad to have it all in one place. So thank you. The other big court culture news is that the 36-member SCOTUS Commission met for the first

time to ostensibly discuss the prospect of court reform. The meeting lasted less than a half an hour. So strong start for them. Just kidding. We know that they were just doing procedural stuff. But in that meeting, they swore in their 36 members and they adopted bylaws for their deliberations as well as a plan for their schedule and structure. And so over the next six months, they're going to meet six times and they will hear testimony about the prospect

of court reform. And there was a lot of discussion about the commission. Certainly when it had its initial meeting and someone described to me their view that the commission was really kind of a legal version of the Peloton bike. It looks good. It'll make you work. But ultimately, it's going nowhere. Is that too harsh? It's too harsh on Peloton, in my view. Do you think that's apt? I have very little faith in the commission. I just don't think it's actually going to accomplish that much. Ryan Dorfler, who's a professor at University of Chicago, had an op-ed in the Washington

Post in which he said progressives should just ignore the commission, you know, for a bunch of reasons that people have outlined in other work. You know, Ian Millhiser at Vox and Mark Stern at Slate and Ellie Mistal in The Nation have written similar pieces. And, you know, I just think they are very right in important respects. All right. I think that's all we have time for today. So we'll leave you with that incredibly searing image of the Supreme Court Commission with Cody Rigsby at the helm, exhorting them to fix their wigs and get to work. Thanks so much for joining us. As always, we are grateful to our producer, Melody Rowell, and to Eddie Cooper, who does our music. If you'd like to support the pod, you can check out all of our great merchandise at our website, www.strictscrutinypodcast.com. You can also support the pod by becoming a regular

subscriber at glow.fm forward slash strict scrutiny. See you next time. Daphne. you