Strict Scrutiny - I Don't Wanna

Episode Date: February 26, 2022

Leah discusses the upcoming climate change case, West Virginia v. EPA, with Lisa Heinzerling and Kirti Datla (1:06). Slate's Mark Joseph Stern joins later to tee up a case the Court has granted for argument next term, 303 Creative v. Elenis, a case involving a graphic designer who doesn’t want to create websites for same-sex couples (49:48). 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 to a very special episode of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Leah Littman, your host for today. The court is hearing a bunch of big cases that we want to be sure our listeners know all about.

So to help with that effort, I'm delighted to be joined by a bunch of experts in the areas the court may be about to bring a huge Miley Cyrus-style wrecking ball to. The first case we'll be discussing is the major climate case that the court is going to be hearing this upcoming week. And then I'll be joined by another guest to talk about the big grant we got this week and some other Supreme Court goings on. But first, the climate case, really cases. A few different challenges to the same non-existent rule are underway, but all of the cases were consolidated together with West Virginia versus EPA. And this case is hugely important and also appears highly technical. So I'm delighted to be joined by

two experts to help us understand what is at stake here and what the court might do. Our first expert is Lisa Heinzerling, the Justice William J. Brennan Jr. Professor at Georgetown University Law Center, where she teaches and writes on environmental law and administrative law. We've previously highlighted Lisa's writings on the show. One reason I'm so excited to have her here is Lisa was the attorney who wrote the briefs for the state of Massachusetts in Massachusetts versus EPA, the climate case where the good guys won, where the people fighting for addressing climate change actually won. So thanks for joining the show, Lisa. I'm happy to be here.

Thanks for having me. And we are also joined by Kirti Dottla, the Director of Strategic Legal Advocacy at Earthjustice. Kirti clerked for Justice Sonia Sotomayor on the U.S. Supreme Court and has worked in the Office of Legal Counsel in Department of Justice. I'm not going to go line by line through her resume because it would take too long, but thanks for joining the show, Kirti. Thanks so much for having me. It's such a treat to be with you and with Lisa. So the case, what is the issue in the case? The formal wording of the question presented sounds pretty abstract and technical. It's whether the Clean Air Act unambiguously limits the measures that the EPA may consider in determining the best system of emission reduction for existing sources to

measures that can be applied to and at the level of individual regulated source. What does this mean in plain English? Well, first it means that what the court's looking for is, does the Clean Air Act kind of specifically, in so many words, rule out certain measures, certain ways in which a power plant can reduce its emissions? And the argument is that by the people who are challenging EPA's authority, the argument is that the Clean Air Act rules out any measures that don't look just right at the individual facility, just at that power plant,

and ask, let's say, maybe a little bit of tweaking here, maybe a new piece of equipment there, that could reduce emissions. If it's not at that specific facility, then they would say the EPA can't use that to reduce emissions under this provision. So it couldn't, for example, ask that source to help to reduce emissions by going to another plant it owns and reducing emissions there, for example. So sometimes the brief refer to this question in terms of can the EPA require outside the fence line measures versus inside the fence line measures? And I think what they are trying to take that to mean is, as you were suggesting, can the EPA only look at a particular source or a particular producer of fossil fuels and tell that producer at that moment or at that location how to reduce fossil fuels versus reducing fossil fuels in some other way? So sometimes

people will talk about the case in terms of the inside the fence line, outside the fence line issue. Yeah, that's right. And I think one thing that's super interesting about this case is, we're going to get into this, but the arguments in this case are quite aggressive on every front. And even just during the briefing in this case, the arguments have gotten even more aggressive. So the opening briefs, like you mentioned, Leah, use this phrase outside the fence line, inside the fence line. But by the time you get down to the briefs- They've declared all of the EPA unconstitutional like you mentioned, Leah, use this phrase outside the fence line, inside the fence line. But by the time you get down to the briefs. They've declared all of the EPA unconstitutional, right?

I mean. Yeah, totally. It's like the most restrictive, cutting the most options out for regulation. And then as you just mentioned, Leah, all the constitutional and ad law arguments get even more extreme. So it's really something to see in real time. It is. Yeah. I look forward to Neil Gorsuch using this case to declare all of the federal government unconstitutional. We'll be watching anyways. But let's hypothetically say that the court does limit itself to deciding the scope of the EPA's authority, at least with respect to,

you know, fossil fuel emissions. What are the stakes of, you know, deciding the scope of the EPA's authority under the Clean Air Act in this case? I think there are climate stakes, and then there are kind of like court law stakes. But on the climate stakes, you know, I think just so your listeners might understand, you know, not everyone like follows greenhouse gas emissions and climate change in detail. understand, you know, not everyone like follows greenhouse gas emissions and climate change in detail. But, you know, the president, President Biden said we need to reduce our emissions by 50 percent by 2030 ish to kind of be on track to avoid catastrophic impacts of climate change. And the power sector is 30 percent of our emissions

domestically. Right. So that's kind of the universe that we're talking about. And then I think it's helpful to kind of compare what the two interpretations might lead to. So the Clean Power Plan, which we'll get into a little bit, but that was the Obama-era regulation, and that had a goal of reducing power sector emissions by 30% over a period of like 25 years. And then the Trump administration rule had a goal of reducing power plant emissions by less than 1%. So that's a pretty big difference on a pretty Was that Jared's idea? You know, part of the problem. Yeah, hard to say, hard to say. And then there are the more kind of like general administrative law governance

issues that you were alluding to as well. This case is, you know, not everyone cares about environmental issues. Like I think they should. And I'm happy to sit down with anybody who wants to be convinced why. But I think if you're listening to this podcast, you care about the court, you care about the law, and you care about the direction the court's taking in it. And what the court's doing with the issues in this case is exactly what it's doing across all other areas of the law. So, you know, you all on the podcast talked about this really important voting rights stay decision that came out a few days ago. And, you know, that there, the court took a case from 2006 Purcell that said you can't, you know, like interfere with an election a month before an election without giving any

reasons, basically. That seems like, okay, fine. Maybe that's the rule, right? And then most recently, it said you have to implement policy that has been adjudged to be discriminatory and a 200-page opinion because nine months before the election is too soon, right? So it's this creep of something that sounds innocuous over a period of time to be hugely impactful and to really affect the law. And that's exactly what's happening in this case, right? Like in the 1980s and the late 90s, the court said, you know, a couple sentences and a couple of opinions about how, like, sometimes if agencies want to do something that looks, you know, kind of like, oh, like, is that really how the statute should work? That seems weird. That's really what those cases say.

And they've been taken and put in place in this case to say, anytime an agency wants to do anything with big impacts, you need a clear statement from Congress to say that the agency could do that. And that's just the same exact kind of plucking and picking and choosing a precedent and rapidly expanding it in ways that are transformative, you know, in the way that we live and all these laws and how we thought they worked in practice. I just want to say a word about the Clean Air Act in general. The Clean Air Act, as we know it, was passed in 1970. It is one of the most effective federal regulatory laws we have. It is certainly the most effective law we have on air pollution, and it's the main vehicle that the Environmental Protection Agency has used to

combat climate change. So any statement from the Supreme Court limiting the authority under the Clean Air Act, even under a specific provision, can have reverberations for that statute. And I'll just point out, for a long time, the federal government has tried to estimate costs and benefits of federal regulations. These are famously sort of lopsided in the sense that they tend to focus on costs more than benefits. In the environmental context, they tend to understate the benefits of acting. But the Clean Air Act has an amazing cost-benefit ratio, amazing cost-benefit profile support. Over the years, over decades, the EPA has produced the most regulatory benefits of any agency. And where have those come from? The Clean Air Act.

So to just take a step back for a second and think about the statute that the Supreme Court is poised to narrow, I think it's really important to understand what good work it's done. It seems like Voting Rights Act, Clean Air Act, all of the good ones are kind of on the list of targets. Okay, so this case in particular involves some complicated procedural history that we tried to briefly introduce in our preview for the February sitting, but is also worth rehashing now just to understand, I think, how aggressive the court would be in deciding the scope of the EPA's authority under the Clean Air Act in this case. So the most important thing to understand, and I'm going to keep coming back to this a bunch of times, and I might not successfully explain how important this is, but there currently is no rule, no regulation in place that can be challenged. There is no EPA regulation that requires or permits outside-the-fence measures with respect to fossil fuel-fired power plants. Like, that should be the end of the case.

The plaintiff's argument is that the EPA can't adopt particular ways of regulating fossil fuel-fired power plants, but the EPA hasn't yet attempted to do so. They haven't told us how they might actually regulate power plants. So there isn't actually a concrete dispute between the parties about what the EPA can actually do. And that is the point I just want to underscore to structure the rest of the procedural history that is going to follow. The relevant statutory background here. OK.

So Lisa mentioned the Clean Air Act. And that act establishes different regulatory programs to control air pollution. Under one program, the EPA administrator identifies categories of stationary sources that cause or contribute significantly to air pollution, which may reasonably be anticipated to endanger public health. And once the EPA lists a source category, the agency then establishes federal standards of performance for new sources. But the EPA must also regulate emissions from existing sources unless pollution is regulated under another program. And the EPA promulgates emission guidelines that identify the degree of emission limitation achievable through the best system of emission reduction. So that's the general statutory background at like a 10,000 billion level foot

generality. Okay. Now the history of this particular regulation. So in the 1970s, the EPA identifies fossil fuel fired power plants as stationary sources that contribute to harmful air pollution. Now we're in 2015, the before times, when the Obama administration was in power and they created the Clean Power Plan that Kurti alluded to, which established standards that addressed CO2 emissions from fossil fuel-fired power plants. So what exactly did the Clean Power Plan do to reduce emissions from fossil fuel-fired power plants. So what exactly did the Clean Power Plan do to reduce emissions from fossil fuel fired power plants? The Clean Power Plan was directed at telling states the goal that they should meet, and then it would allow them that kind of flexibility to meet those goals. And they looked at several different ways of reducing emissions. They looked at measures that could be taken at the source,

basically to improve efficiency, so there would be fewer emissions per unit of energy or electricity produced. And they looked at other measures that could be taken, such as going outside, again, outside the fence line and looking to other sources like gas-fired sources or to renewable energy. And so at the end of the day, the states had to meet the goals set by the EPA, but they could choose from that mix of measures that EPA had identified. Okay, so that was the Clean Power Plan. Once the Obama administration announced it, numerous states and private parties petitioned for review of that rule. And the Supreme Court, actually in a super warning sign about how they were going to use the shadow docket, stayed the rule that is prevented the administration from implementing it and enforcing it before any court had determined that it was unlawful. And that was actually one of Justice Scalia's last votes before

he died. This was back in 2016. So the Supreme Court stays the rule. And then the Court of Appeals that would have been the one to determine whether the rule was lawful, decided to hear argument in the case on Bonk as a full court and held a seven-hour marathon argument in the case. I mean, this is making me really nervous about the amount of time I'm going to have to hear Neil Gorsuch and Brett Kavanaugh wax poetic about liberty and whatever else is going to come out of their mouths during this argument. Anyways, so Justice Kavanaugh was on the D.C. Circuit when they hear the argument. But then the Trump administration takes office before the court decides the case.

And the court basically held the case and ultimately dismissed it as the EPA reassessed its position. And now we're in 2019. The Trump administration decides to rescind the, you know, end the Clean Power Plan rules. And they did so by saying, we've concluded that actually the EPA didn't have the authority under the Clean ending and rescinding the Clean Power Plan. But then that's challenged in court, and a court of appeals vacates the Trump administration's decision to end the Clean Power Plan, concluding that their interpretation of the Clean Air Act was wrong. So now in February 2021, with President Biden just having taken office, the EPA moves to stay

the Court of Appeals decision that vacated the Trump administration's rule, saying, like, we're going to do a new rulemaking. And that's what happened. The Court of Appeals did not issue the mandate. So its decision invalidating the Trump era rule rescinding the Clean Power Plan never went into effect. That decision is still in effect. And that means this Clean Power Plan repeal is still in effect. And that will remain true until the EPA comes up with a new rule. So somehow we've arrived at this case, even though there actually is no rule about how the EPA will be regulating greenhouse gases. But the case came about when red states and coal companies go to the Supreme Court and ask the Supreme Court to review the D.C. Circuit's decision invalidating the repeal of a rule,

even though we don't know what will replace the repeal of the rule. And their argument is basically like, well, whatever the EPA is going to do, it's definitely illegal. And yet the Supreme Court decided to take this case. I mean, why would it do so? It only hears 50 or 60 cases a year. Why is it going to take one that doesn't even involve a rule that's in place yet, where we don't know how the agency might exercise its authority? In a way, the court's aggressive grant of review in this case is the perfect bookend to its aggressive stay of the Clean Power Plan back in 2016. And I actually think they're related philosophically.

The court, for the first time, as I understand it, in history, reached out and said to an agency, you may not implement that rule when no court below had actually ruled on that. And I just have to take my word for it that that, I think, was the first time. And that I think it makes it very complicated to think whether the court even had the power to do that without any underlying lower court judgment. And if you read the court's order on the Clean Power Plan, it made sure that it would have the final rule, so that that rule would never go into effect unless the Supreme Court spoke again. That's kind of, in my view, gesturing towards its desire to hear the case on the merits.

Comes back around now, and I think they are just really itching to take this case. I think they're itching to take this case because it involves the Clean Air Act, because it involves climate, and because it involves an administrative agency that has power to regulate private parties. Yeah, I'll just add, you know, Leah, you said there's no rule in place, yet they went to the court. And why would they do that? And why would the court care? And everything you're describing has the flavor of like a classic advisory opinion where the court's just like opining on something without a real legal dispute before it. And so the question is like, well, what are they asking the court to opine on? And the briefs make that super clear. They teed this case up for the court

as a vehicle for the court to put in place this kind of quote unquote doctrine that you alluded to, the major questions doctrine that's been like bubbling around in like concurrences and dissents and now Justice Kavanaugh's DC Circuit writings, but hasn't actually made its way into a majority opinion in the way that is being asked in this case. And that's what the case is really about. Like the briefs don't really hide or shy away from the fact that like they. And that's what the case is really about. The briefs don't really hide or shy away from the fact that they don't really care what the court says about the Clean Power Plan. They care that the court says that there's a major questions doctrine and that it applies in this case. Yeah. They're basically begging Justice Gorsuch to release his burn book on the

administrative state even before there's an occasion to do so. So maybe we can get into these legal doctrines governing administrative agencies and administrative law, which seem to be, you know, the motivation for this case, really. So the legal tools that are associated with this project of limiting administrative agencies and the administrative state are both the non-delegation doctrine and the major questions doctrine. Now, in the last episode, I guess, we did kind of a deep dive on the non-delegation doctrine in particular. But how is the major questions doctrine related to the non-delegation doctrine? And, you know, how is it different? Well, the non-delegation doctrine, as your listeners now know, it forbids Congress to delegate its legislative power to any other entity, including an administrative agency like the EPA. It's for a long time gone just basically unenforced for lack of any durable principle to

distinguish lawful from unlawful delegations. And that idea has kicked around for years in separate opinions, not in majority opinions. Hint here or there in majority opinions. But the idea that some questions might just be too big to delegate, but we don't have a flat-out ruling to that effect. The major questions doctrine is similar insofar as the idea is that the court looks very skeptically at an agency trying to answer an important question of economic and political policy. And they're different insofar as the non-delegation doctrine is constitutional. The major questions doctrine is an interpretive principle made up by the Supreme Court pretty darn recently. Some many people say, including your guests, and I agree that the non-delegation

doctrine has that as well. But they've come together in, I think, a really toxic way recently, which is to say that Justice Gorsuch now just flat out says a case probably will satisfy the requirements of the major question doctrine and the non-delegation doctrine as he understands it at the same time. They're both about important questions, and they both in this formulation forbid agencies from answering important questions if Congress hasn't spoken pretty clearly. And I think the dangerous thing about that is that becomes an all-purpose tool for undoing federal regulation and federal statutes, and in the very cases in which we need them the most. As Lisa just mentioned, the court hasn't actually put this into a majority opinion yet,

so it's kind of hard to say what the major questions doctrine is because- It's a vibe. It's a metaphor. It's totally a vibe. It's like, do I feel like this has the flavor of too much regulation? But I did want to say in that seven hour marathon DC circuit argument that you pointed out Justice Kavanaugh back when he was a judge on the DC circuit kept referring to it as a standard of review, like sort of like a strict scrutiny for statutes, right? Which like nothing's going to get by. And I think if that's what it ends up being, it's like almost even scarier than what Lisa previewed, because it's just like a, you know,

an off switch for applying a statute in a certain way. So I'll be curious if he says that at argument this time, too. Yeah. So just to kind of, again, help our listeners understand the relationship between these doctrines and how major questions doctrine is different, you know, non-delegation doctrine purports to sayutes in a way that requires them to clearly and explicitly give agencies authority when agencies are exercising authority to answer big questions, do big things. It's unclear in what set of cases it would actually be required that Congress would speak with clarity. And both Lisa and Kurti are saying it's not possible for Congress to satisfy that standard when it's actually needed. You know, some amount of ambiguity is inevitable. It's oftentimes, maybe not oftentimes, but sometimes intentional. And many times Congress won't know how an agency might choose to or need to address a problem effectively. These are things that are left to agencies for a reason. And saying Congress needs to lay all that out specifically is to,

in effect, forbid agencies from going beyond whatever is laid down in the statute. And Congress can't lay everything down in the statute. And so major questions doctrine arrives at the same place that the non-delegation doctrine does, which is Congress lacks the authority to give big decisions to agencies. Yes. And I just add one thing, which is that ambiguity is determined by the courts. Once litigation has arisen, anybody can find a statute ambiguous and therefore not clear enough to satisfy the requirements of the major questions doctrine. If you can't do that in an important case, I suggest you look at the statute again, right? You can always find an ambiguity. And so Congress would really be, it's not just

about the agencies being hamstrung, it's really about Congress being really rendered almost incapacitated if it does try to take on a big problem. And I think that really gets at what is driving this case. You know, we mentioned previously that it seemed like this case was an effort to get the courts to make these big pronouncements about the major questions doctrine that would make it really hard for agencies to do any regulation whatsoever. And there's a wonderful amicus brief from friend of the show, Senator Sheldon Whitehouse, that's joined by Senators Blumenthal, Sanders, and Warren, and was filed

by Dean Erwin Chemerinsky of Berkeley Law. And it basically says, look, this case is just a transparent effort by a well-funded deregulatory campaign to hamstring the EPA. And it links that with the political goal that Steve Bannon identified for the Trump administration, namely the deconstruction of the administrative state. And fascinatingly or revealingly, former White House counsel Don McGahn, you know, while he was on leave from his passion project of destroying campaign finance regulations, explained that the White House's process of judicial appointments and method of selecting judicial nominees was linked to that effort. And he said, you know, the judicial selection and the deregulation effort are really the flip side of the same coin. They understood that they would be appointing judges and justices who would carry out their plan to deconstruct the administrative state.

And this case is the fruition of those efforts. You have industry groups, coal companies, red states asking the court to basically unleash this deregulatory bonanza on the country. And the justices are so eager to do so, you know, they reached out to take this case that isn't even an actual case. Can I say one other thing that really hits that point home about the deregulatory agenda, which is that the way the justices have looked at this interpretive principle, the major questions idea, is that it only applies when the agency is actually trying to regulate, when it tries to do something about a problem. So if the agency, like in the Clean Power Plan, really wants to do something about climate change, then the major questions doctrine steps in and says,

not so fast. But if it doesn't want to do anything, the court has, even in climate cases under the Clean Air Act, the conservative justices have said, oh, that deserves deference from us. And so it is a built-in deregulatory mechanism. Okay. So now we can try to link these principles, major questions doctrine, to the legal question in this case, which, you know, again, sounds highly technical, and it's going to turn on what might seem like wonky and technical ideas about how to interpret the Clean Air Act, but it's hugely consequential because they are going to be grounded in ideas about what Congress can allow administrative agencies to do and what administrative agencies are empowered to do under

our system of government. Okay. So the case is about how emission standards for existing sources are set. And under the statute, the term standard of performance means a standard for emissions of air pollutants, which reflects the degree of emission limitation achievable through the application of the best system of emission reduction. And the big question is kind of whether under that provision, the EPA can adopt a best system of emission reduction that includes those outside the fence line measures that we were alluding to at the beginning of the show. So this is a court, and there are many justices on the court who are very into textualism, you know, looking at a statute, seeing what it says, and that's apparently all they are supposed to do.

The problem is that nothing in the phrase best system of emission reduction necessarily excludes outside the fence line measures. System is a pretty broad word, and nothing in the text limits it to systems at a particular source or systems for particular sources. And so this is where the major questions doctrine comes in. So how does the major questions doctrine kind of allow the court to put the text of the statute to one side? Yeah, I mean, if you look at the briefs, the challengers briefs, the red states brief, the coal companies, all that, and all of their meekie, they don't start with the text of the statute, they start with the major questions doctrine. And they say, this is a major

question for reasons, we can get into, like the smorgasbord of reasons that they give, but they say this is a major question. And so we need this super clear statement from Congress that says like EPA, you can't address this major question because as Leah, as you previewed, that statement will never be in a statute because Congress doesn't write that statute. Like Congress doesn't write statutes that way. EPA loses. And then they get into the text and they make a whole bunch of arguments that we can kind of get into if you want that are like not that convincing, quite frankly. I think the way they get around really engaging with the text and doing the kind of normal way you interpret statutes is by putting

up this roadblock before you even get there. I think it's really hard to read not only the specific provision, but all of the adjacent provisions and come away certain, right? I really do think one is left with a sense of, well, you know, maybe it just doesn't necessarily answer the question. And so I think that's what leads everybody to try to find a tiebreaker. In the case of ambiguity, what do you do? It used to be we could actually try to figure out what did Congress, what was it trying to do? The only person left on the court who even asked that question mostly is Justice Breyer. And there's nobody else. And so the textualists have disabled themselves

from looking at the usual or historical sources of what Congress meant and what its purpose was and so forth. And so they've come up with a series of tiebreakers of which the major questions doctrine is one, which is in the case of ambiguity, the agency loses. And I'll just say here, I don't know to what extent you really want to get into Chevron deference here, but for a long time, because of the Supreme Court, the courts actually had a clear answer in the case of ambiguity. It was that the agency in charge of implementing the statute who had more expertise and was closer to the political process than the court would be deferred to. And that's just off the table here. I mean, one of the striking things

about the briefs is not one brief for the party cites the Chevron case in any substantive way. The United States cites it for an example of a kind of trading system. And that's it. And so I think that's why there's a, there's a, if it's ambiguous, the whole question is, what do we do with that? Can we look at these other sources of what Congress wanted? Not according to the textualists. Apparently, we can't look at Chevron. And now they're just substituting another substantive, judge-made idea in order to break a tie. I just wanted to pick up on the last thing you just said, which is they are seizing on this substantive, judge-made idea to determine what statutes mean. Because part of what is so striking about the major questions doctrine is

how much intention it is with the idea of textualism. The major question doctrine is essentially, in this case, operating as I think the most charitable interpretation is it's a tiebreaker in the face of ambiguity. But I think a less charitable interpretation is it's a substantial carve out and just, you know, hacksaw to the statute that Congress enacted in that it allows courts to basically sit back on their chairs and say, do I think what the agency is doing is a big deal? And enough of a big deal that I'm willing to say, I'm just going to read it out of the statute, you know, the agency's authority to make that decision. And that's just so at odds with how some members of this court have very clearly and ostentatiously said they should be

deciding statutory interpretation cases when their job is just to look at the language that Congress has enacted and say, if the best interpretation is, you know, agency gets to do this, like that's the end of the game. And this allows them to basically stack the deck in the other direction. Yeah, I think even, you know, just to, Leah, you said, you know, try and be charitable and try and keep that in mind. But, you know, there are other- That was a joke. Kate Shaw wasn't here.

So, you know, I felt the need to throw that in. Yeah, yeah, yeah. Well, maybe I can try and channel Kate, although I think that's impossible. But yeah, I mean, I think there are other kind of, quote unquote, substantive canons like this. Like there's a canon, the federalism canon, which says kind of like as an empirical matter, we think that Congress tends not to an empirical like maybe maybe I don't think so. But maybe that's an empirically true statement about what the enacting Congress thought. And so it tells us something about what the words that statute and what the words in the statute mean. Right. So at least you're still kind of doing textualism when you apply that canon. But when you look at this version of the major questions doctrine

that's in the briefs, the things that the petitioners are telling the court to look at to decide that a question is major have nothing to do with the text of the statute and nothing to do with the enacting Congress and what it might have had in mind. There are things like how many comments were submitted on the Clean Power Plan. They mentioned that President Obama announced it from the East Room. Rather than the West Room, would that have made a difference? How about the Rose Garden? Like a tweet, a tweet, maybe a tweet would have been OK. No, those get deference.

I remember that from President Trump's ban on transgender individuals serving in the military as well as the travel ban. Yeah. So tweets good, East Room bad. OK. Got it. Yeah. Yeah, totally. And they look at things like, you know, there's other statutes that Congress has passed that don't really actually deal with this, but those are somehow relevant, even though in a normal way, in a normal case, the court would never consider the fact that like a semi-related but not conflicting statute exists in the ether. You know, they look at unenacted legislative history. That's one of the craziest things that like a self-avowed

textualist would never look at. So they're just like throwing things at the wall and seeing what counts as major, basically. And I think that's pretty telling that this isn't textualism anymore. It's something else. It's like an attempt to do non-delegation by other means, you know, whatever you want to call it. It's something else. In fact, it is a way, you're right, Leah, to say it is more than a tiebreaker in the sense that, one, I think it emboldens judges to look again at the statute and just really not look hard at the language and just kind of look at it, feel their own impulse upon looking at the question, and then decide without going into any of the hard work that would come in actually even determining ambiguity. It's just not necessary

in some sense. And if you think about one of the cases in which an idea like this first really surfaced was some time ago when the Food and Drug Administration tried to regulate tobacco. And the court rejected that. And they did that in the face of the literal language of the statute that would have allowed it. And that was their puzzle, to get around that literal language. And so this does have a pedigree of being a way of getting around even clear language when they think that it's just too much. Part of what the two of you are saying is evidence, one, that major questions doctrine is like the ultimate vibe rather than law. You know, the fact that they're thinking about it being

announced from the East Room, the fact that they are using it to carve out, you know, from a statute, all of that is just pretty lawless and pretty mushy. And I know, you know, Kurti, you have kind of been monitoring how this doctrine has taken shape in other courts, you know, as the Supreme Court has signaled that it is open to a pretty aggressive version of it. So like, what would a aggressive, mushy, I guess those two words can go together, version of the major questions doctrine potentially look like and do? Lisa kind of hinted at it, which is that the courts basically already kind of put

it out into the universe that there is such a thing as the major questions doctrine, even though it's only done it on the shadow docket. And all it has to do really is like send out that bad signal to the lower courts and to litigants. And it's already been picked up. And if they put it in place in this opinion in an even more aggressive way, it's just going to keep happening. There was a decision out of a district court that, sorry, I can't even get the words out because this is so ridiculous, but there's a district court decision that took what's called the social cost of carbon, which is another thing that sounds technical, but isn't. But basically, agencies are supposed to analyze the effects of their actions, the effects that their actions will have on climate change. And the social cost of

carbon is just like a number that you can use to do that. And, you know, as Lisa mentioned, you can have questions about whether that's the right number. But I don't think anybody seriously has questions about whether the president can like tell agencies, here's a number that you can use. You're all doing the same thing using the same math, right? So a district court struck that down, issued a preliminary injunction, struck it down. There's like all sorts of reasons why this is crazy. But one of them is that the district court said it's a major question to consider the effects of climate change in this way. And that's kind of just like, okay, you know, so anytime you're doing anything climate related, maybe that's a major question, if you kind of apply that decision, or you think

that decisions are correct application of the major questions doctrine. But it gets even nuttier. So one of our attorneys at Oath Justice sent me a complaint the other day where the plaintiff is saying that the regulation of turtle excluder devices, so those are the little things that let turtles get out of fishing nets, that that regulation creates a major question doctrine because, again, reasons. Is it because it's about turtles, not fish or escaping turtles are a big deal. I just, I want to try to put my finger on the vibe to the extent. I think if there's a vibe, it's like boats are on water and water raises commerce

clause issues, but I'm not. Water, big. Okay. Got it. Oceans. Yeah. But it's like, that's, I think that's kind of the point, you know, I, you know, not to be like super cynical, again, I'm trying to be Kate, but I'm not, I'm not getting to that level of Zen. Like, I think that if you put this, this major questions doctrine out in the universe, it's a tool that can be used by litigants and by courts that look at regulations and have that kind of, this is too much vibe, you know, given that this is a court that, you know, five members of the court have said they're OK with non-delegation or at least thinking about non-delegation and reviving it.

Like, I think they'd be perfectly fine with that outcome where this is just kind of out in the universe in a like un-cabined, un-rigorous way because it gets to that deregulatory effect. Yeah, those five justices are talking to the non-delegation doctrine, as the kids would say. They're not like dating yet. I think that's the way. Before I ask you all your thoughts about what to watch for at oral argument, I just wanted to highlight an amicus brief that I thought was particularly good in kind of calling attention to the basis that this regulation has in the statute. And that's NYU's Institute for Policy Integrity brief filed on behalf of former Dean Professor Ricky Revez, a professor at NYU. I thought it was just super effective in providing examples of the many

different kinds of regulations the EPA has enacted under the Clean Air Act to regulate stationary sources and how it would just be really odd to say and any such approach that does so in a different way is a major question. Okay, so what should our listeners be looking for at oral argument when this case is heard and hopefully less than seven hours? I think we'll have a hint fairly early on because the people who are complaining about the D.C. Circuit's decision will go first. And I think it'll be really telling to see whether anybody asks them about why they have the ability to bring this case now and ask them about whether they're injured, how exactly how they are injured, the kinds of questions, if it were environmentalists petitioning,

the kinds of questions they would get a lot at oral argument. I think that'll be really telling. I just feel like now when I listen to arguments, I'm like, what's coming next? I've sort of accepted this case is what it is and that things are going to happen. And so now I go into argument and I'm just like, oh, what if it's a spending clause statute, like, wouldn't it just be totally unfair to the poor states if we don't construe it to like, you know, only cover things that are super, super clear. So it's like another one of these kind of is all of government unconstitutional. Yeah, exactly. Exactly. So I'll be he's asked it twice this term in cases where it wasn't really an issue. So I'm curious if it's going to come up in this case. I think you'll know kind of like what Lisa said, you'll get a sense of how the court's thinking about it also by how much they're willing to accept some of the sort of obvious misstatements in the briefs. Like the reply briefs in this case, very clearly, like intentionally

talk about houses a lot. They're like, oh, the EPA could regulate houses under this interpretation. And like, it's just not, it's not true. EPA says it's not true. Like, you know, it's just all not true. But I think it's like obvious that they, like somebody said, like, this is the thing that we can plant in their minds to make them scared enough about this regulation to trigger the vibes that we were talking about, to trigger the major questions doctrine and go down that road. So I think that's another thing to look out for. But I was glad to see that the Solicitor General is arguing this case, which I think, again, tells you how big this case is. But I'm super happy that we'll have her up there. I hate to say this because it sounds so cynical, but I think that the chaos that is being generated by the Supreme Court's approach in so many domains,

it's shadow docket, it's lack of transparency, it's aggressive accepting of review, especially in the public law domain relating to government. It generates chaos in the federal government. And another way to shut down the federal government is to generate that kind of chaos. And I just fear that they don't know that. If they don't know that, that's irresponsible or they don't care. Or even worse, they actually sort of are okay with that amount of disruption that'll be caused. If they even insert a sentence in an opinion, that means that lawyers at every agency around the government are trying to figure out how does it affect their work, because they're actually responsible people who are trying to know how can they stay within the law. And so it worries me, not only just the biggest, broadest rulings, but any sentence can lead to a ton of upset and tumult in our government. And I

don't think that's a good thing. That's a great point. I've always thought of Neil Gorsuch as someone who has like big chaos energy. You know, Curti was alluding to the fact that, you know, he's asking about whether spending clause programs are unconstitutional. You know, he's very interested in reaching out and adopting legal rules that would make many practices, you know, that we take for granted unconstitutional and just like revisiting existing law. But you're right that the court's more general practices of aggressively accepting review in cases, deciding more issues on the shadow docket, and just the current mix of justices itself creates a lot of chaos because they're a very

unpredictable, not institutionalist bunch who just have their kind of like pet projects. And like, that's how they think they should be resolving these cases. And that is that is big chaos energy. And that is not good. And they wrap it in humility. Yes, exactly. Yes. Another word for all this is deterrence, right? Like, I mean, the EPA has already said that it's taking into account this 5-4 unreasoned stay that we talked about back in 2016. Like it's treating that like law, basically, is what it's saying. So yeah, it's disruption, like what Lisa said, but it's also

deterrence, because obviously, they have to factor in that this is the court that we have whenever they're trying to, you know, establish protections that benefit us all. I mean, that's partially what led them to hold back in creating a new eviction moratorium, you know, last summer is the court issued that kind of ambiguous decision on the shadow docket with Justice Kavanaugh's, you know, big chaos concurrence suggesting that, well, I'm not invalidating this one, but like, maybe if you extend it, I would, I don't know. And there was real uncertainty within the federal government about how, if, whether they could respond to that non-decision, that unexplained decision. And that's part of what led to the uncertainty. And they ultimately concluded they did have the

authority and did try to adopt a new eviction moratorium, which the court invalidated. But I think that was part of the chaos and part of the deterrence that you both are alluding to. One of the things that strikes you both are alluding to. the many, many separate opinions describing in very fine detail exactly how the conservative justices disagree with each other, just feel like they're just a little bit too happily exercising disruptive power. Lee, I know you're a big Justice Kagan fan, and I think that we know based on an argument this week that she's going to be going into the West Virginia argument kind of guns a-blazing because in a different argument about a different statutory interpretation issue, she referred to the, quote, supposed major questions doctrine, which has like big some geniuses kind of energy to it.

So I feel like she's on a mission and I'm excited to see how that shakes out. Justice Kagan, if you're listening, please refer to Neil Gorsuch as some genius in this argument. Like, some genius tells me the major questions doctrine is really just the non-delegation doctrine. You know, side eye. I wouldn't be able to see the side eye since I won't be there, but just imagining the possibility. And if she could refer to Justice Kavanaugh as a supposed justice. That too. That too. We have so many great suggestions for one first street on the pod. Well, thank you so much, Lisa and Kurti, for spending this time with me and sharing your

expertise with our listeners. We are all much smarter for it. For listeners who are interested in climate issues more broadly, they should definitely check out Hot Take, another new Crooked Media podcast about climate issues. And Lisa and Kurti, thank you again. I'm sure we are going to be calling on your expertise to try to help us explain this decision and whatever unfolds from it.

So really, thank you. Thanks so much. Thank you. Okay, so that is the climate case that the court is hearing this week. The court heard some big cases last week, and there will be a special separate episode on the cases involving Native American affairs. But for now, I wanted to bring our listeners up to speed on the court's insistence on eating all of the marshmallows now, as well as their interest in reaching out to decide cases that aren't cases at all. And to help me break down these developments, I am delighted to be joined by none other than Mark Joseph Stearns, senior writer at Slate who covers law and courts. Welcome to the show, Mark. Thank you so much for having me on.

I am overwhelmingly delighted to be here. We are delighted to have you. Better late than never. This has been something that should have happened a long time ago, but I'm glad we are making it happen now. Okay, so the latest development on the marshmallow experiment at 1 First Street. So the court decided to reach out and take the case that was basically, I think, specifically engineered and made up to allow the court to cut back on anti-discrimination protections for LGBTQ individuals and kind of decide the issue that the Supreme Court dodged in Masterpiece Cake Shop versus Colorado Civil Rights Commission. So do you want to tell us a little bit about the case that the court agreed

to hear? Absolutely. Well, actually, I really don't because it's very depressing, but I'll do it anyway. Thanks for playing, Mark. Of course. The case is called 303 Creative versus Alanis. And as you indicated, it was really manufactured for the Supreme Court. It involves a graphic designer named Lori Smith who makes websites. And crucially, she does not make wedding websites. She has never made one. She has no immediate plans to make one. Right now, as far as I can tell, she mostly makes websites for churches, for dog breeders, and for Republican politicians. But she claims that one day in the future, she may make a wedding website.

And one day in the even more distant future, she may be asked by a same-sex couple to make a wedding website. Okay, you got that? So those are the stakes. It sounds pretty hypothetical to me, but I think I have it, Mark. So she teamed up with an organization called Alliance Defending Freedom, well-known to strict scrutiny listeners, as part of their campaign last decade moving into this decade to try to roll back or abolish nondiscrimination laws that protect LGBTQ people. So ADF was also behind Masterpiece Cake Shop. It was behind a case involving a florist who didn't want to sell flowers to a same-sex couple, to a photographer who didn't want to shoot a same-sex couple, wedding venue owners, all of these folks who do not want to serve

same-sex couples who are getting married. And this case has always sort of been the crown jewel of that strategy, I think, because those other cases, like the florist, the baker, whatever, they involve maybe marginal speech. It's like expressive conduct. There's a question of whether baking a cake really constitutes speech under the First Amendment. That concern is not here in this case, because I think we would all agree that creating a website is pretty classic speech. So this is a case that directly tees up the big question of whether states like Colorado

can direct individuals who enter the marketplace, like Lori Smith, to serve all people equally, regardless of their identities, including same-sex couples, even when that service involves speech that in other contexts might be protected. So I know that's a little bit wordy, but I want to explain this very clearly because, you know, I don't think that the government could tell you as an individual that you have to host a same-sex wedding in your home or that you as an individual have to endorse same-sex marriage or even make a wedding website for a same-sex couple. That's not the question here. The question is whether once you become a business, as Lori

Smith has, she is incorporated, once you enter the marketplace and sell your goods or services in exchange for money, whether at that stage the government can force you to follow some ground rules. And one of those is accepting all comers. And that is the question in 303 Creative. Yeah. And Laurie Smith says, but I don't want to, which, of course, is a well-recognized defense under the First Amendment or, you know, is about to become one anyways.

So, you know, as Mark, you kind of explained, this case involved a mix of the different arguments that ADF had kind of been getting the court or asking the court to reach over the last several years. Namely, whether it violates someone's free exercise rights under the First Amendment, you know, to require them to comply with nondiscrimination rules. Or, you know, alternatively violates their rights to freedom of expression. And here, the Supreme Court decided to take only the freedom of expression, free speech question, I think largely because it's kind of ducked the free exercise issue, you know, in the last several cases in which it came up. And also because, as you note, this case was basically specifically engineered so as to only involve speech rather than expressive conduct. And I think in that way,

allow the court, allow the advocates to portray it as a potentially narrow exception to anti-discrimination requirements, namely like only those people who are engaged in speech. But the fact that this particular case involves someone who's engaged in speech doesn't really tell us what they would do in the next case, which involves expressive conduct. Is that, I think, like a fair assessment of possible implications? Yes. And I think the implications go even further than that, because there are a bunch of different arguments that ADF and their allies are presenting here. at least not on the scale of, say, women or interracial couples or racial minorities or religious minorities, that same-sex couples and gay people are just lesser than, and that the government does not have a compelling interest in protecting them from discrimination.

That is the most minimalistic argument. The broader arguments in the case are even more disturbing. So ADF and their allies argue that persecuted Christians in this country are just, you know, facing discrimination left and right, that the powerful LGBTQ lobby is out to get them, that the Supreme Court has to protect them from same-sex couples by granting them a kind of special shield very broadly against discrimination laws. These folks argue that there is really no compelling interest in preventing discrimination against anyone when it comes to at least freedom of speech, that, you know, an individual who wants to say, I do not serve Black people has a right to say that

because they have a right to offend Black people and the government doesn't get to suppress those ideas. There's an argument in this case that the discrimination is not really conduct or is not always conduct. The discrimination is often speech or takes the form of speech. And so the Supreme Court and the federal judiciary needs to really closely scrutinize all non-discrimination laws because they directly suppress freedom of speech and may be unconstitutional. And that would be a real sea change because for many decades, the Supreme Court has treated non-discrimination laws as limiting conduct with incidental burdens on speech. That's how the court has always put it. They've said, you know, these laws are designed to ensure equal access to the marketplace.

And to the extent that they suppress free speech, that is a permissible burden to reach those noble and compelling goals of non-discrimination. The court has said that under the Civil Rights Act, you know, an employer can't put up a sign in the door that says no blacks need apply because it said, well, yes, that's speech, but it's just incidental to the conduct, which is turning away black people. But it looks like the Supreme Court may be willing to reconsider that presumption and say that when discrimination takes the form of speech, that it actually becomes protected by the Constitution and that the government has no real constitutional interest in limiting that

discrimination, which I think is very alarming. Yeah. And just to spin this out a little bit, or maybe just to repeat kind of some of what you said, there's nothing about the theory that 303 Creative and Laurie Smith are advancing that would be limited to cases involving discrimination against same-sex couples or LGBTQ individuals. Like, if it's true that the government can never require you to speak when you don't want to, or can never require you to stay silent when you don't want to, then that would also apply when it is a case involving racial discrimination or discrimination on the basis of sex. The question then is whether the government has basically a sufficiently important interest in

prohibiting discrimination on the basis of sexual orientation or prohibiting discrimination on the basis of race. And I think you're completely right that this case and these line of the Trump administration was arguing and they asked him, you know, do you think basically that the government has a sufficiently important interest in regulating sex discrimination in the face of First Amendment claims? He basically said, I'm not sure. So like, it's just not clear whether this theory is going to be limited to, you know, the particular kind of anti-discrimination protections that, you know, the conservative groups don't like right now or is going to creep into others as well. Again, because there's nothing about the theory itself that would be limited to cases involving discrimination on the basis of sexual orientation.

Exactly. And the Trump Justice Department tried to create a bright line rule here, saying essentially that race discrimination is just fundamentally different and that the Supreme Court has never said that good people can be racists, but it has said that like good people can be homophobes. It's very odd, but the Justice Orman plucked out that line from Obergefell where Justice Kennedy basically says, you know, I don't mean to smear everyone who opposes gay marriage as bigots. They can be good people. And the Justice Department said, well, you know, no one says that about racists. Like nobody's out there defending racists as good

people. So we just think that race is different. And Sam Alito is like, well, well, give me a second. Exactly. Sam Alito aside, I think that there is this sense, at least in conservative circles, that you can cordon off race from every other protected trait. And spin some kind of constitutional theory about how the 14th Amendment was designed to end race discrimination and that that creates this compelling interest in race cases that just doesn't exist elsewhere. I think that's wrong for a bunch of reasons. I think it fails on its face because of the court's broader 14th Amendment jurisprudence. I think it's the wrong reading of Obergefell, but I certainly think it's a reading this court could adopt. And like I said, as awful as that would be, it would do the least amount of damage to

civil rights law because at least it would permit the government to ban other kinds of discrimination, potentially even in this context, and it wouldn't start to kind of topple the whole edifice that holds up these civil rights provisions. But I do think it is also important to understand this case against the backdrop of attacks on LGBT civil rights, you know, not just in the courts, but elsewhere. So Florida, for example, is considering the legislation that outlaws discussing sexual orientation in the classroom. Texas Governor Greg Abbott is basically signaling to prosecutors that they should be investigating and maybe removing transgender children from their homes if parents provide gender affirming care and basically encouraging state employees to report trans children to the state. And this

case is of a piece with that project and that movement. And I think it's important to understand it in that context. Yes. And I think it's especially fascinating in light of those developments to read some of these briefs in the case, both by the plaintiff and the amici who talk about the, quote, powerful LGBTQ lobby and try to frame Christians as minorities who need this protection and need like a kind of a leg up in the courts because they're just under fire left and right. And of course, that's not true at all. It's the reverse of what's true. But that's the whole tactic here. There's a lot of gaslighting at play, which has proven to be a pretty effective litigation strategy over the last couple of years, I will say. So it seems to me that there again, that there is a real chance that the court could really pull back from where it was in cases like Windsor and Obergefell, stop talking about gay people as, you know, facing real stigma and discrimination and degradation, and start

talking about them as kind of like over-eager beavers trying to just push everybody who disagrees with them out of the public sphere and frame people like Lori Smith as the real victims. And, you know, just on a factual level, if you look at what's happening in Florida and Texas and so many other red states, there are at least eight states trying to ban LGBTQ speech in public schools. That theory, that framing, that narrative just fails. This case is going to be heard next term, which will begin in October. But this term, the court is also hearing cases that seem like they are just kind of manufactured to allow the court to issue broad pronouncements about what it would like the law to be.

So one such case is Arizona versus City and County of San Francisco. This is the case we briefly mentioned on a previous episode about whether red states or states led by Republican attorneys general can intervene in litigation to defend a Trump era rule on immigration that was declared unlawful in the lower courts and that the Biden administration is rescinding through a new rulemaking. We're not going to spend much time on this case just because it's pretty ridiculous, but the court is so worked up into a tizzy about the bad faith of the Biden administration

in basically going along with the decisions that invalidated the Trump-era rules that they didn't think or pause at all about the bad faith of the Trump administration, which filed a petition for certiorari in the Supreme Court literally the day before President Biden took office, so as to basically make it harder for the Biden administration to change positions once the cases were already on the Supreme Court's docket. And none of that and none of

what the Biden administration did is bad faith. It's just how a change in administration leads to a change of positions. But they're just so eager to find bad faith on behalf of the Biden administration that it didn't even occur to them that, again, like everyone was kind of doing some strategic posturing here to either get the case to the Supreme Court or keep the case out of the Supreme Court. Or it did occur to them and they just chose a bad faith interpretation anyway. Right. Another possibility. So I mentioned we're not going to spend a ton of time on this case. I did want to highlight two moments from the oral argument. One is to ask you, do you think Justice Breyer gave away the results in another case, the court is hearing this term. Let me play the clip from the Arizona case and then maybe ask you to interpret it for our listeners. And so forth. Okay. That's one thing. But then they say, we have a totally different ground. Our ground for intervening is simply this. The decision of the courts about the merits of the old rule is completely wrong. And if you allow this to stand, this totally wrong decision,

courts of the United States, what the government will do is just acquiesce. And that way they avoid notice and comment rulemaking. And that should be a ground for our being able to intervene, to ask for rehearing on bank, or maybe ask the Supreme Court. Pretty similar to what we just allowed in that case of the Attorney General, you know, it was a different party. What was it, Kentucky? And pretty similar. Say, they won't defend it, but we'll defend it because it's totally wrong. And you see what we gained? Now, to me, that is a law professor's issue. My God, I don't know what the answer is.

Yeah, I think Breyer gave it away. I think it's pretty clear based on what he just said out loud that the Supreme Court's going to allow the Kentucky attorney general to step in and intervene and defend this abortion restriction, even though doing so violates like all of the known procedural rules on the books. They're just going to create new procedural rules because that's what they can do. And no one gets to stop them. Because abortion. Because abortion. Hey, you know, abortion, distortion, it's not just for liberals anymore. I think that Breyer has senioritis, man, and he's like smoking a joint and drinking a Corona and like kicking his tires and being like, when can I get the hell out of here? And he's just, you know, for the last few years, remember when he kept bringing his phone onto the bench and it would like buzz? And I mean, he is pretty clearly phoning it in. I do not understand why he spent this extra year on the bench for no reason.

Like maybe his vanity required it. Maybe he really wanted to be like the ineffectual leader of the liberal wing for like 12 months. But, you know, it hasn't been that fruitful in my view. And I'm glad he's accidentally revealing outcomes. But I would like him to leave now. There is nothing more dangerous than an employee who has already given notice, or so Steve Breyer intends to tell us. So the second moment in oral argument was one that kind of channels what we were talking about just a second ago, namely the fixation of the justices on the purported bad faith of the Biden administration.

So let me play a clip from Justice Alito that kind of channels this idea. Well, why is that so? If we step back and refuse to let the trees obscure our view of the forest, we can take into account everything that happened in this situation, which seems to be quite unique. I congratulate whoever it is in the Justice Department or the executive branch who devised this strategy and was able to implement it with military precision to effect the removal of the issue from our docket and to sidestep notice and comment rulemaking. But all of that took place. I'm not aware of a precedent where an incoming administration has done anything quite like this. And this was an issue that we had agreed to hear before. What was so striking to me about this clip is Justice Alito is basically saying what the government

did here is novel. It's different than what governments have done in the past. And that novelty is a reason for courts to be skeptical of it. Now, listeners of the show might be familiar about the fact that in the Texas SB-8 case, when Texas designed that novel mechanism to restrict abortion in Texas, Justice Alito's response was basically, well, nothing to see here because this is a different thing the government has done. And so who am I, Sam Alito, to do anything about this? These geniuses came up with this new maneuver and there's nothing the courts can do about it because there's no case involving exactly these facts. And it's just like that argument wasn't serious then.

It's not serious now. And you just apply existing principles to different sets of facts. is really just piquing my interest about whether it's conscious bad faith, whether he's so deep into the conspiracy theory that he can't see the other side or what is it? And I just, yeah. I think you've hit the nail on the head. I mean, some geniuses at the Justice Department figured out how to what? not appeal an adverse decision? That's never happened before. Oh, my goodness. I mean, and the way Alito spins this out, his whole comment, you know, this military precision, it's like, come on, man. It really was not that hard. Like, this is something that lower court judges flagged, especially

Lawrence Van Dyke flagged in this incredibly petulant, whiny, bratty dissent about how aggrieved and outraged he was that the Justice Department decided just to accept this decision while it was going through rulemaking to repeal the underlying rule. And I just, I don't see what the problem is, at least not under the court's current jurisprudence. You know, it was a nationwide injunction, but the court doesn't seem to have a problem with nationwide injunctions anymore now that Joe Biden's in the White House. And it seems to me that Alito is kind of taking his priors into the fight here. And he thinks abortion is bad.

He thinks Roe is illegitimate. So if there's a novel kind of procedural mechanism to make an end run around Roe, he's like, hell yeah, let's do it. And if there's a novel, not really novel, but kind of like mildly inventive procedural mechanism to quickly scrap a really bad and probably illegal Trump era rule, then Alito is like, absolutely not. How dare you? This is offensive to me as an Italian American. And I just, I think it's- This is religious discrimination. Joe Biden is discriminating against me because of my religion.

I'm pretty sure that's what he sees. It is a violation of the free exercise clause for the government not to turn away impoverished immigrants. That's my understanding of this case. Yes, exactly. The First Amendment compels discrimination against poor people. That's, I mean, that's basically where we are already. Look, it's Alito being Alito.

I say this all the time and people who don't watch the court closely generally don't believe me, but I know you'll understand what I mean. He is still the worst somehow. After three Trump justices, all of whom I dislike immensely, he, Alito, Sam Alito, is still the worst justice on the entire court. And it's just like, I think he works at it. Well, we all work for the things we believe in. One final note, which is, again, back to Justice Breyer's senior spring. Justice Breyer released the opinion for the court in Unicolors v. H&M, a copyright case that held that a legal error in an application for copyright registration does not invalidate the registration unless the copyright applicant had actual knowledge that the application wasn't accurate. And Steve Breyer got to be very Steve Breyer in this opinion, writing, a brief analogy may help explain the issue. Suppose that John, seeing a flash of red in a tree, says, there is a

cardinal, but he is wrong. The bird is not a cardinal. It is a scarlet tanager. And then he goes on for like an additional paragraph to speculate about different ways John might have erred in misidentifying the scarlet tanager as a cardinal. And this is how Justice Breyer chooses to spend his senior spring. So, you know, have a great summer, Steve. Hags. Hags, exactly. Can I just say one thing about this quickly? You know, I love birds. I have

three birds. They're my they're my best friends. In addition to Lucy, my dog, and I guess my husband too. He can he can count. I was not a huge fan of this allegedly brief analogy. I do appreciate that Breyer was able to throw in a citation to United States versus 53 eclectus parrots. But I read it a couple times, and I do understand this case pretty well, I think. And I still don't fully understand that analogy. So maybe it's just me. Maybe I'm so blinded by my love of birds that I can't see them used for such functional purposes. you know, it just didn't click. And Katonji Brown-Jackson, I think she's probably got a stronger analogy game when it comes to real legal analysis and not making people scratch their heads.

Okay. Well, I look forward to reading more of that soon. Thank you so much to Mark Joseph Stern for joining us. Thank you to Lisa Heinzerling and Kurti Dautla for helping us preview the climate case that is about to be the end of the earth. And thank you to all of you for listening. We will have to have you back, Mark. Anytime, truly.

Strict Scrutiny is a Crooked Media production. It is hosted and executive produced by me, Leah Littman, Melissa Murray, and Kate Shaw. It is produced and edited by Melody Rowell. Audio engineering by Kyle Seglin. Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz. With digital support from Amelia Montooth. Thank you.