Strict Scrutiny - Is It Infringement If It's Funny?

Episode Date: March 27, 2023

Strict Scrutiny takes Hawaii! Senator Mazie Hirono joins Kate, Leah, and Melissa for a live show at the University of Hawaii Richardson School of Law. We catch up on the latest in anti-abortion legislation, recap the Supreme Court's arguments from last week (including the Jack Daniels'/poop jokes case), and discuss a first-of-its-kind opinion out of the Hawaii Supreme Court.Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello and welcome back to Strict Scrutiny, your award-winning podcast about the Supreme Court and the legal culture that surrounds it. This time, coming to you live from Hawaii. Aloha, bitches.

We're your hosts. I am the tropical Melissa Murray. I'm Kate Shaw. And I'm Leah Littman. We are so excited to be recording today at the University of Hawaii Richardson School of Law, and we are incredibly grateful to the law school, to Dean Camille Nelson, to Professors Richard Chen and Susan Serrano, and to everyone else who made this visit happen. The occasion for our visit is that we are basically the entourage for Melissa, who is spending a week in residence here at the law school as the Dan and Maggie Inouye Distinguished Chair in Democratic Ideals,

which is quite a title, and a title of which Melissa is quite deserving. And of course, we were more than willing to piggyback on Melissa's awesomeness and come out and join her for a recording of the show as she's deservedly recognized with the Inouye Chair for her incredible work in constitutional law and other fields. One big plus of co-hosting a podcast with some of the most professionally accomplished and smartest people in the law. Let me just say it has been my privilege and pleasure to be here this week as the Inouye Chair. Thank you so much for the warm welcome that you've given me and my family here to the islands. We've had an amazing time. I've loved being a part of your community.

And again, mahalo, mahalo, mahalo. Thank you. I've been to Wet n' Wild three times. And wow, you know how to do it here. So thank you. Thank you. As we promised last week, we have a very special guest joining us for a segment where we will canvass some updates in the landscape for reproductive rights as well as some other matters.

And then we'll turn to recapping what happened last week at the Supreme Court. Before we get to the substance of today's episode, a quick reminder that next week we will also be on the road, this time in Wisconsin, which is the location of the most important election of 2023. That's an election for a seat on the Wisconsin Supreme Court, where Judge Janet is running against Dan Kelly. So around this time next week, we will be at the law school in the lovely Madison, Wisconsin, which is sometimes known as the Honolulu of Lake Mendota. Sometimes. Like this one time.

This one time, exactly. But now on to today's show. So for our first segment, we want to extend a very warm and special strict scrutiny welcome, an aloha, really, to Hawaii's senior senator, Senator Mazie Hirono. So welcome to the show, Senator Hirono. Aloha. I'm glad to join you. And it's so appropriate since we're going to be, I know, talking about Roe v. Wade because Hawaii was the first state in the country to decriminalize abortion. And we did that before Roe. Yes, you did. And I will also say, Senator Hirono, in your work as a member of the Senate Judiciary Committee, you have been an absolutely incredible and formidable advocate and important voice on a wide range of topics, but especially reproductive rights.

And I can say this from personal experience. When I testified against Brett Kavanaugh, you looked me right in the eye and asked me, is Brett Kavanaugh a vote to overtone Roe v. Wade? And I said, yes. And we were right. Join the Cassandra Club, Senator Hirono. Join the Cassandra Club. And among the other issues that Senator Hirono has been on the forefront of, I just wanted to extend a personal thanks to Senator Hirono for asking nominees about workplace misconduct and sexual harassment after the allegations about Ninth Circuit judges Kaczynski and Reinhart sexual harassment once those allegations became public. And that's a super important and often neglected topic. So thank you, Senator, for your

attention to that issue as well. And another topic, as we've already alluded to, that Senator Hirono has been actively involved in is reproductive rights and justice. So that, of course, is the topic that we're going to turn to now. So Senator Hirono, as you just alluded to, our listeners obviously know very well that last June, the Supreme Court overruled Roe versus Wade, opened the door to state efforts to restrict and even prohibit abortion. You obviously sit in the United States Senate. So from your vantage point, can we just start by asking you in general terms, what can be done to address ongoing efforts to restrict and prohibit abortion, including efforts playing out in the courts? And can you talk about some of the initiatives that you have been spearheading from the United States Senate? Well, the first thing was that we attempted to pass the Women's Health Protection

Act to codify Roe v. Wade and to put some other protections in place that did not get the votes that we needed. We've introduced, including me and we've introduced a number of bills that protect privacy information relating to reproductive rights and reproductive services. None of these bills are going to get anywhere if we don't get rid of the filibuster, which is why we need more Democrats in the U.S. Senate. So there are a number of bills that go to the issues that we care about. And then some of us really pushed for, for example, the VA and the military to provide options for veterans to get reproductive services. And that is all being challenged. So I just wanted to take a beat on the Women's Health Protection Act and maybe explain a second,

you know, why it's known as the Women's Health Protection Act. That's the bill that Senator Hirono noted would codify Roe versus Wade. And the wonderful writer Moira Dunnigan wrote recently for The Guardian that according to new CDC data, the rate of maternal mortality rose by 40 percent in 2021. Women died at a rate of 33 deaths for every 100,000 live births. And that rate is more than twice as high for black women. And we're also seeing reports about hospitals having to close and, you know, and providing gynecological services that recently happened in Idaho. So the Women's Health Protection Act, like there's a reason why it's known as the Women's Health

Protection Act, given the astonishing rates of maternal mortality and morbidity in the United States. And the thing is that the suffering of the women, for example, that there was an article I read recently of a woman in Texas who needed basically to have an abortion, but unless she's practically on death's door, she will not be able to get those services in Texas. So the suffering of women, you did a podcast on the suffering of women. That is what we need to continue to focus on, to tell the stories of all the women. And of course, we know that there's a Texas judge who is being asked to get rid of the use of mefipristone, which is an abortion, medication abortion. And if this judge, very conservative, ideological judge,

deems Memphis-Bristol not to be available, then that is in effect a medication abortion will be denied in all states, not just Texas. And more women will die. So in addition to the actual physical toll that the aftermath of Dobbs has had on women in the United States, there is also a legal aftermath that we are now seeing emerge. So Kate alluded in an earlier episode to a case that's ongoing right now in Texas. A Texas man is suing three women under the state's wrongful death law. He's suing them on the grounds that they helped his ex-wife and her pregnancy by helping her to get a medication abortion. He discovered this by going through her phone, apparently, and discovering texts between her and her friends. And the suit is really

just groundbreaking in a lot of ways. And, you know, Leah, I know you wanted to talk a little bit about the damages that he's seeking, almost a million dollars in damages. Yes. And Senator Hirono, you alluded to the suit that is seeking revocation of Mifepristone. But this lawsuit is also an attack on and challenge to the availability of medication abortion, since it is seeking to identify who the makers of the medication abortion that his ex-wife used are in the hopes that, you know, they can sue the makers as well and potentially impose ruinous liability on them too. And it's not, to be very clear, this isn't a one-off lawsuit. This lawsuit is brought by this Texas man who happens to be represented by, wait for it, some genius, Jonathan Mitchell, who also happens to be the architect of Texas SB-8, which is the Texas

bounty hunter abortion law that went into effect in September of 2021 when the Supreme Court allowed it to go into effect there. But interestingly, this lawsuit was not brought under Texas SB-8. Why or why not? Any possibilities, ladies? I mean, maximize damages, maximize impact. It seems like, you know, so this is the architect of SB8. And that was, SB8, I think, was an interim step toward the place we are now, right, over turning row and allowing states to move swiftly to restrict and even prohibit abortion. But of course, now, you know, the goals are moving. I think that's right.

I think SB8 is something we've already overtaken in Jonathan Mitchell's mind, SB8. And so we're on to the next frontier. And other states have wrongful death laws, right? And so other, you know. What is the import of suing under a wrongful death statute as opposed to a Texas bounty hunter statute? It is moving us toward fetal personhood. Because only a person can be the subject of a wrongful death suit. So this is a backdoor way into fetal personhood. He's also invited the DA, apparently, in Galveston County, Texas, to consider filing criminal charges against

these women as accomplices under the state's homicide statute. Again, under Texas law, homicide statutes are there to prosecute people. And when Justice Alito writes his opinion saying fetal personhood is the law of the land under the Constitution. He will say it's deeply rooted in our history and traditions. See what Jonathan Mitchell did last year. 2022. Yes, correct. Correct. So the fear and chaos that has been attended to that the Supreme Court's overturning your role is not going to end. And in fact, more and more of these kinds of lawsuits. And it's just the total chaos, not to mention states like South Carolina, where there's a bill to impose a death penalty on a woman who gets an abortion. Or Idaho, where a person who helps a minor cross state lines to get an abortion can be charged with sex trafficking. So there are just so many of these kinds of laws and cases that, you know,

that the Republicans desire to, they are fixated on trying to control and have power over a woman's body. It's an obsession with them. And it does feel like this is sort of this kind of multi-front effort. And we could go deep on any of the sort of topics that you just raised, Senator, but maybe, you know, you in one of your earlier answers referenced this Texas Mifepristone suit, which maybe we should just take a couple of minutes to sort of talk a little bit more about because we actually haven't on the podcast had a chance to discuss a hearing that happened in Amarillo, Texas, to revoke the FDA's approval of mifepristone, one of the two drugs used in medication abortion, an approval that was made 23 years ago, and a lawsuit that is just riddled with procedural flaws that mean that there's no principled legal basis

on which any federal judge should be able to rule. And yet I think there's a very real chance that that is what will happen. But the claims in the suit are that the FDA erred in a number of respects when it approved Mifepristone over 20 years ago, also that somehow the approval today violates a statute called the Comstock Act, which we've mentioned before, initially passed in 1873. This is a federal law, which of course means it applies everywhere, that prohibits, among other things, distributing through the mails articles and substances that could be used

for producing abortion. And of course, before the court overruled Roe, there was no way to enforce the Comstock Act in a way that would prohibit the distribution of abortion pills. But now there are groups that are calling for the statute to be interpreted to prohibit the distribution of medication, abortion, and calling for that statute to be enforced in a way that would ban the shipping of these drugs nationwide. So that's sort of a separate set of calls about the Comstock Act, but the act is also at the heart of this lawsuit that is now pending in Texas, and out of which we might get a decision any time, including potentially in the next hour while we're recording this podcast, although it's probably late enough on the East Coast that we're safe at this time.

But it's coming any moment, I think. Safe for the weekend. Right. So that's good. We should also take a beat, Senator Hroner, to sort of talk about this hearing that happened in Amarillo. Leah has described on this podcast before, she's described U.S. District Judge Matthew Kazmarek as the most powerful man in America. And that is because he is the only judge

in this one courthouse in Amarillo. So when people need to file something, when conservatives want to file something, they want to be assured of a particular outcome, they take their suit to Amarillo where they'll find Judge Kaczmarek and possibly the relief that they are seeking. And so Judge Kaczmarek has been the judge in the Biden return to Mexico suit. He's also been the judge in the Biden case concerning trans protections for students. And now he is the judge in this particular case, which is brought by a coalition of anti-abortion organizations and physicians, which have come under the umbrella of a new organization that they are calling the Center for Hippocratic Medicine. I almost said hypocritical medicine, and that might be

a Freudian slip. And fun fact, the Center for Hippocratic Medicine was incorporated in Amarillo, Texas. Weird. So weird. It was incorporated in Amarillo in August of 2022. So just, you know, curiously, coincidentally, I am sure, two months after the court overturns Roe in Dobbs, this new organization is incorporated in this one little part of rural Texas. And lo and behold, this is where the lawsuit is now pending. They were like, you know who would have the expertise to oversee state's regulation of women's reproductive capacity? Matt. I know a guy.

Matt Kazanich, for sure. For sure, for sure. One thing to note about this hearing, which took place in Amarillo, was four hours long, so there was that. But it began with a prayer. Very normal. Very, very normal protocol for a federal hearing about whether to make abortion access harder, even in states where it is currently legal. So that was how it began. How did it go, Kate?

You know, we weren't there, of course. It was kind of by design very difficult for a lot of press to get access because the hearing itself wasn't announced until just the eve of the hearing. It was almost like it was on the shadow docket. The district court shadow docket. Yes, the new shadow docket. The emergency shadow docket for district courts. Right. Or just for Amarillo, maybe.

In any event, from what we heard from the hearing, it actually does seem like there is a very good chance that the question is kind of when and how, not if, this judge is going to accept one or more of these plaintiff's theories, which, you know, they honestly are not worth spending a lot of time, I don't think, sort of walking through. They sound sort of like a conservative Mad Libs of like this decision 23 years ago somehow violates a federal statute that has to do with mail. None of it really coheres. And yet it seems like there's a very real chance that, again, the judge accepts one or more of these arguments. Judge Kazmierk is the go-to judge. It's very clear. And I've been told that you are all professors, all professors,

I've been told that it is really hard to teach con law with a straight face. We have a Supreme Court that is prepared to toss out decades of precedent because of their ideological perspective. It would be easier to teach con law if I could have some Mai Tais at the Halekulani before teaching some of the classes. But anyways. I mean, it's been so hard to teach con law that we left. We came here. We've led the mainland. We did. We did. Another thing to flag from the hearings is an exchange between Judge Kesmeric and one of the lawyers for the plaintiffs, the Center for Hippocratic

Medicine. One of the plaintiffs' lawyers was Aaron Hawley, who you may know is married to famed marathoner Josh Hawley. And thank you. Correct. Correct. So, Counselor Hawley said something to the effect of Dobbs changed everything and the availability of Mifepristone has now made it difficult for anti-abortion states to enforce their bans on abortion, to which the government's lawyer defending the FDA correctly responded that it is hard to see how this bears on the FDA's 23-year-old approval of Mifepristone as safe and effective. So what to say about this argument? People have been saying that those people who are in blue states like Hawaii are safe for now. But

of course, a decision in this Mifepristone case could really change the landscape, even in places like Hawaii, where abortion is legal. So what can people in blue states do to support reproductive justice in this moment? Well, first of all, we have to fight this case tooth and nail. And if this judge, because it would have to be a Trump-appointed judge, who I did not vote for, to decide a case that should have been done away with on a summary judgment motion. But here we are, it is going to be appealed by the government that is defending the FDA's 20 plus year decision. And heaven knows what's going to happen if it goes all the way to the Supreme Court, because they are very busy overturning precedent. But maybe even for the

Supreme Court, that is a bridge too far. But, you know, we just have to fight this case as far as we can. And then at the same time, there are issues relating to court reform. So while what the Supreme Court is doing, which is what I would call an out-of-control, extreme right-wing ideological majority in the court, the kind of decisions they're making opens the door for discussions about court reform, such as increasing the number of justices on the court, or more basically, how about having them have a code of ethics? Oh my God, stop. How about a code of ethics for these folks? Because all the other district and circuit court judges have a code of ethics and with

some provisions relating to conflict of interest. Jenny Thomas, Clarence Thomas. I mean, does the king of England have a code of ethics? It's crazy that they don't have that. So, of course, there's a bill that would impose a code of ethics on the Supreme Court. This is a court that's basically, again, to borrow from the Bravo universe. Like, who's going to check me, boo? Right.

Like, I agree with you. They are the law. They are above the law. It's kind of a Schrodinger situation. It is. It is. But we're here. We would support judicial ethics reform. We'd be there with you. Oh, yeah. Bring us to Washington. Like, again, we don't want to teach con law right now under these circumstances. So we're on tour. We're on tour for the long haul. Senator Hirono, both on reproductive rights and justice and on court reform and ethics

and sexual misconduct in the workplace, really across the spectrum, thank you so much for your leadership on all of these issues. And thank you so much for taking the time to be with us on the podcast today. We are very grateful. Mahalo. We haven't even talked about the Bruin decision. Next time, Senator. Next time.

We'll take that as an advance yes to our invitation to come on the podcast to talk Bruin next time. So we would love to have you back to do that. Aloha. Stay safe. Thank you so much. We stan a fellow Cassandra with receipts. We did. Like pull them out.

Like a CVS receipt. That guy? Oh, I didn't vote for him. I did not vote for him. That was amazing. I don't even know him. I'm sorry. Thanks to Senator Hirono for taking the time to chat with us. Now we are moving on to recap some of the cases that the court heard last week. And hopefully you will have been familiar with some of these cases because we previewed some of them on our last episode, but we just wanted to talk through what actually happened at the oral argument. So the first up is Arizona versus Navajo Nation, which is an important water rights case involving the federal government's

obligations to the Navajo Nation and tribes more generally. So Lawrence Hurley at NBC News had an illuminating deep dive story, really fantastic and important, also deeply troubling, about the difficulties that the Navajo Nation has had and continues to have in accessing water, something that the nation's lawyer very effectively surfaced in this oral argument. Hurley's reporting in the story provides some really important context for this case. It begins with one woman's four-mile journey to the local well to obtain water. She has no running water in her home.

On the reservation, 170,000 people are without running water. So again, think about that for context. Not only does the reservation lack water, it actually lacks the infrastructure to be able to distribute water from more remote sources. So this makes life and agriculture and other kinds of sustainability really difficult on the reservation. So that really frames the kind of stakes in this case. And at the oral argument, I thought that Justice Sotomayor really both brought out these stakes, but also reminded everyone of the history out of which this case arises. And so let's start by playing that short

clip here. And in that land, they couldn't farm. There was drought conditions, and for at least three seasons, they were not able to grow any food, correct? And then the U.S. wanted to put them someplace else, and they insisted on returning to a part of their native homeland. Justice Sotomayor was sort of the first to really inject the history into this oral argument, and the context of this exchange was that Justice Sotomayor was basically reminding everyone of the background to, so there's an 1868 treaty whose meaning is really at the heart of this case. And the background to that treaty is, of course, in 1863, the United States forcibly relocated the Navajo Nation to an area called Bosque Redondo. They were there for

three years and unable to grow food, although the federal government's lawyer, in a response to the question we just played, sort of insisted, well, the reason was because there was alkaline in both soil and water in this new location, not because of our failure to provide water, which sort of felt like it was missing the point. But after the Navajo negotiated the return to part of their ancestral homeland, they entered into the treaty that established the Navajo Reservation as the permanent home for the nation. So that is the background out of which this treaty grows. And as to the substantive questions in this case, we noted on the preview that the first substantive issue is generally whether the Navajo Nation actually has rights to the water under

existing treaties or via the general relationship between the United States and the nation more generally. And there were a number of very revealing exchanges on this issue, including this exchange between the lawyers and someone who I call the most interesting man in federal Indian law today, one Neil M. Gorsuch. So let's play that clip. Mr. Liu, with respect to that, there are provisions in the treaty with respect to agriculture, a promise that this will be a permanent home and that there will be opportunity

for raising animals, right? Correct. Is it possible to have a permanent home, farm, and raise animals without water? I feel weird about this because I'm like, you're right, Neil. And I never say that. It's confusing. It's a confusing feeling.

I know. Sometimes Neil Gorsuch's dripping condescension and the utter horror he expresses about a party's position finds an appropriate target, like as a stop clock. Right. Anyways, it worked out in this case, as he directed his ire at the federal government position that the nation had no rights to water under the relevant treaties or the relationship between the nation and the United States. So, you know, here's another clip of Neil being Neil, but doing it right this time. If you just answer my question, could I bring a

good breach of state contract claim for someone who promised me a permanent home, the right to conduct agriculture and raise animals? If it turns out it's the Sahara desert. I don't think you would be able to bring a breach of contract claim. I think you don't think that's a breach of good faith and fair dealing. I don't think at least it would state a claim? I don't think so. And I'm happy to apply ordinary... If we disagree with that, then what? You find yourself rooting for him, and it's weird.

It feels so weird. On the other side of the question, whether the nation has rights to the water, was the Chief Justice, who is not the most interesting man in federal law. Very different energy from Justice Gorsuch in this argument. Let's hear the chief justice's energy. The treaty specifically mentions a variety of things that would be necessary for agriculture. You know, the 15,000 sheep, however many cattle, the seeds. If the water were,

why wasn't the water mentioned as your argument now is it's necessarily implicit, but the other things were spelled out. Wouldn't you have spelled out the water at the time? Deep sigh, deep sigh. Why wasn't the water mentioned? I mean, this is a remark

that makes very clear he is entirely unsympathetic to the nation's position here. He also seems, I think, a little ostrichy and churlish. Like, how are you planning to raise the sheep, the cattle, and the other livestock mentioned in this treaty without access to water? I mean, like, duh. Just on vibes. No water. No water, just vibes. I mean, could this actually be so obvious it need not be explicitly detailed in the treaty? Almost like unenumerated rights?

Never. Never. Never. No. No. But so that's where Roberts was. I think that was also likely where Alito and Thomas and Kavanaugh were. It wasn't actually crystal clear where they were on this first question, whether there is a right to supply or there was a right to access water at all. But they definitely seemed pretty unsympathetic to the nation's argument on the second question, which we will talk about in just a moment. There was one moment in the argument that provoked a question for me, which was this, where is Sam Alito getting his information from? So let's play that clip.

If I had been shown a seat-of-the the pants calculation that per capita water on the Navajo Nation is greatly in excess of per capita water for residents of Arizona, do you think that would be incorrect? Like, where did this seat of the pants calculation come from? Who showed it to him? To the best of my knowledge, Tucker Carlson did not cover this case, which makes me wonder, is it a QAnon message board? It's definitely on subreddit. It's a subreddit. It's a subreddit. Okay, yeah. Or maybe like his special dinner guests, the rights mentioned something. Who knows? Anyways. Yeah, that question was part of this line of kind of concern that

Alito seemed to be channeling throughout the argument, which is, but who else could we care about, right? Could we care about everyone else's access to water somehow would ruling for you disadvantage in a way that I can actually get worked up about individuals in nearby states like Arizona, but not actually part of the reservation. So that really was what this question, I think, kind of grew out of. Another issue in the case we talked about on the preview is the related question of assuming that the nation does have rights to water. What is the available remedy if those rights are not being fulfilled? That is, how could the nation possibly secure their rights to water? So because this topic, you know, the gap between remedies and rights is kind of a pattern at the Supreme Court of making rights unenforceable is a concern and

academic interest of mine. I wanted to highlight this pointed exchange in which Justice Kagan brought out the oddity and the problems with the federal government's position, that is, you know, even assuming the nation has rights to water, they can't actually enforce those rights. There are no rights to water, but you're not reading the treaty that way. You're saying, look, when the treaty gives land, the treaty also says, you know, implicit in that is that you have a right to the water that will enable you to live on that land. So then there seems to me to be a gap, because then you're saying, well, notwithstanding that the treaty gives water, that the treaty promises water, that's what treaties do. It's a contract

that promises something. You're saying those rights are unenforceable. And I guess I don't understand if the treaty promises water, where you get the idea that that is unenforceable. No, the treaty does vest water rights in the tribe, And those rights are enforceable, including by the tribe. But the promise that we have allegedly breached here isn't about violating those rights. It's about violating affirmative duties to supply the water to the tribe. It's just like my minerals. I guess I'm not getting it. If there's a contract and the contract gives a right to one party, then just by the nature of how rights work, it gives a duty to the other party. So there's a contract here and it gives a right to the Navajos. You say so yourself.

That means it puts a duty on the other party to the contract, which is the U.S. government. I think Justice Kagan's line of, I don't understand your argument, is basically like the moment in Billy Madison with the following exchange. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul. That's what she is saying when she says, I don't understand your argument, or I just don't get it.

I think this is like Leah as Elena Kagan, anger translator, is a recurring segment that we need to bring back now routinely. But yeah, that's basically what she's saying. And Justice Jackson essentially brought this issue up as well, just this gap between rights and then remedies or enforcement, as well as sort of underscoring along with Justice Gorsuch, with whom I think she is very much kind of aligned on these issues. And in this case, about the importance of embedded understandings of the United States's duties and the rights of tribes. And so she was sort of all over those themes throughout the argument. And in this case, as in the court's previous decision in Castro-Huerta versus Oklahoma, it seems like Justice Barrett is going to be the swing vote. So the question is, is she going to Castro-Huerta us or not?

Castro-Huerta, of course, is the case that Justice Kavanaugh wrote that destabilized centuries of federal Indian law, that states actually do have the authority to prosecute crimes that occur on Native lands where the victim is Native American. And the part that Justice Barrett seemed to be hung up on in this case was not whether the tribe had rights to water or whether the rights were enforceable, but instead whether the remedy in this case might be in conflict in some ways with what the Supreme Court had said in a previous water case, Arizona versus California. So I listened to this oral argument in real time here while I was in Hawaii, and it really

sort of hit different in a place where water rights play such a huge part of the legal landscape. And this really came home to me when I was hanging out with the students and faculty of the University of Hawaii Richardson School of Law's Kahuliau Center and just for those who may not know about it the Kahuliau Center provides direct legal services especially to rural neighbor island communities such as Kauai's North Shore and Maui's West Side and in doing so it focuses on Native Hawaiian law and legal

issues of importance to the Native community, including riparian rights. And Kahuliau's clinics have been doing pathbreaking work at the intersection of Native Hawaiian rights and environmental law, including work to preserve riparian rights for Native communities. And as I learned from Professors Kapua Sprout and Susan Serrano, who are the directors of the Kahuliau Center, in Hawaii, fresh water has been a tool to control and colonize indigenous communities. And as the Navajo Nation argued at the Supreme Court this week, the return of those water rights to its original stewards is absolutely central to this project of self-determination and restorative justice for Native communities. So this case is about the Navajo Nation, but obviously its import will extend far beyond the Navajo Nation to include other Native and indigenous communities.

And if you'd like more information about the work of the Kahuliau Center, please go to www.manoa.hawaii.edu forward slash Kahuliau, K-A-H-U-L-I-A-O. And thank you so much to the directors and faculty and students of the Kah heard argued last week called Jack Daniels versus VIP products. And we've already mentioned the need for drinking during this episode, but I feel like we really maybe should have prepared to have a drink for this portion, especially of the show. Another reason why we should have done this show at the Halei Kalani and had Mai Tais at the ready. We are definitely making a beeline there when this recording is done.

But as a reminder of what is at issue in this case, so this is the trademark case about the bad Spaniels dog toys that are parodies of Jack Daniels. The case asks whether the humorous parody of a mark can infringe that mark. It also asks what standard court should use when determining whether the humorous parody of a mark can infringe that mark. It also asks what standard court should use when determining whether the humorous parody of a trademark infringes that mark.

And so just for folks who are maybe not familiar with Bad Spaniels, let me tell you a little bit about them. So these are dog toys. They look like Jack Daniels bottles, both in the product itself, so on the toy itself and in the advertisements. There are lots of poop jokes. The toy itself says, old number two on your Tennessee carpet. Parody is the Jack Daniels whiskey bottle.

And Jack Daniels is not amused, so they have sued. The argument was, as we predicted, a pretty wild ride. But in part because we're not IP experts, but also because we want to save time for a segment later in the episode, actually, about some really important developments out of the Hawaii Supreme Court. We're going to go a little bit short on Jack Daniels, play you some clips, but honestly- It's what they deserve. Consider pulling up and listening in all its glory to this oral argument. It really doesn't disappoint, but we'll give you some highlights.

Yeah. So first we'll just kind of describe where it seemed like some of the justices were in the case and the kinds of arguments that they were interested in. And then we can get to the oral argument that everyone was talking about. So some of the justices here seemed very interested in the possible exception from protection for artistic expression or other forms of speech and thought that this might entail some kind of parody exception. But some justices, Elena Kagan, were not sure that bad Spaniels dog toys fell under the parody exception as was being postulated. So let's play that clip of a very skeptical Elena Kagan. What is there to it? What is the parody here? The parody? Yeah. Maybe I just have no sense of humor, but... What's the parity?

The parity is multifold, but the testimony indicates, and it's not been disputed, that the parity is to make fun of marks that take themselves seriously. Well, I mean, you say that, but you make fun of a lot of marks. Doggy Walker, Dos Peros, Smella Arpa, Canine Cola, Mountain Drool. Are all of these companies taking themselves too seriously? Yes, in fact. So you're just saying anytime you go out after or you use the mark of a large company, it's a parody, just by definition, because they must take themselves too seriously because they're a big company. I think as applied here, there's no doubt that Jack Daniels takes itself very seriously.

I don't know. I don't think Stella Artois takes itself very seriously. And they have very funny commercials. And I've seen their historical commercials and they would honor parody too. But Jack Daniels is at the head of the line. I mean, this is... Okay, I've made my point. You know, new fodder for my nightmares is Elena Kagan telling me all of my jokes about Sam, Neil, and Brett aren't funny. Like even her telling me some of those jokes aren't funny would be pretty sad. I would still make the jokes, but it would be soul crushing.

It'd be crushing. So in terms of sort of where the substance of where the justices were, some of them seem to be saying, well, okay, so speech can be a parody, but this is a toy that is sold as a toy. So it's not a parody. Whereas maybe a T-shirt with a saying, with some words, text, maybe images could be a parody. There was also this idea of floating a commercial versus non-commercial distinction. Non-commercial parodies might, you know, be subject to heightened protections or not be able to trigger liability. Commercial ones like these might not. So these are some of the lines that justices seem to be sort of, you know, grappling towards,

but it wasn't that clear where they might land in terms of drawing those lines. And one of the justices that was invoking some of these ideas was Justice Kagan, and bringing this back to, you know, the subject of my nightmares, or maybe like manifesting an additional nightmare, I'm going to tempt fate and the universe and suggest that I might actually know more about something than Elena Kagan does. Now, admittedly, the thing I think I know more about is dog toys. But let's play that clip here. Okay, a dog toy, I'm just going to say is a utilitarian good. There might be some hard cases, I actually don't think that the political t shirt is a very hard case, it says something, it's making a point. But dog toys are just utilitarian goods, and you're using somebody else's mark as a source identifier,

and that's not a First Amendment problem. Again, I am tempting the universe, but here goes. Dog toys are utilitarian, it's true, but for doggy influencers, like my mini golden doodle, Stevie Nicks, they can also say something and they can make a point. I take pictures of Stevie, the pup fluencer, with dog toys and bandanas that say some things that I want to communicate. Like I take pictures of her with her little menorah toy around Hanukkah with a dog toy in the shape of a White House that has two German shepherds, you know, around Biden administration events, a rainbow toy that says love, that I take pictures of her humping around pride. Like the list goes

on. And I haven't even gotten to her men's tears collection. But the point is like dog toys can be expressive and they can say something. And that is one reason why momagers like me get them for their expressive ends. Not everyone. I feel like you just won this case, Leah. I think you did. Excellent. Why weren't you there for VIP toys? I do think that some of the justices were with Elena on this one.

I think she might have been on her own on this. But some of the justices seem to think that Jack Daniels had really overreached here because no one would think that a product like this, a dog toy, a squeaky dog toy about poop, is made by Jack Daniels. No one is confusing this for a Jack Daniels product. And that is my point. That's been my point from the beginning. For F's sake, Jack Daniels, get a grip. No one is confusing. No one is confused. No one is confused. And that sort of is at the heart of the legal test. Melissa, you know.

I know. I know what you're going to say. I know what you're going to say. This also was an argument. This also was Sam Alito's position. Is the multiverse collapsing? Like, what is happening? Someone has the infinity stones.

Like, someone has the, like, Neil Gorsuch first. It's just stopped clock. Now Alito. Yeah. Every so often, Leah and Neil and Melissa and Sam just converge. And then, you know, we feel really weird about it, but it doesn't happen again for a while. Related to kind of this, I think, Melissa's skepticism and Melissa and Sam's skepticism, you know, a number of external commentators really did seem to note that,

A, it's not that plausible that anybody is genuinely confused. But B, if Jack Daniels is actually arguing that there's confusion, in some way it seems to be suggesting that its customers are too dumb to tell the difference between an actual bottle of whiskey you can drink and a squeaky dog toy. So I'm not sure Jack Daniels should be conveying that message to its customers or to the court. Who are their marketing people? This is terrible. Other justices were concerned about what kind of rule or what kind of direction they should give to lower courts in order to best protect freedom of expression. In particular, some were concerned about a standard that just told lower courts that in deciding whether there's infringement or maybe whether there's for use or maybe whether there's confusion, consider the fact that it's a parity. Their concern with that kind of standard was that the determination would only be resolved well into the course of the litigation, which can

be very expensive on both sides. And especially because part of the litigation would include running surveys to basically determine whether something was confusing to consumers. So some of the justices wanted a clearer test, maybe something that was more upstream and didn't require that kind of investment in order to determine whether or not there was brand confusion. And that kind of test would potentially allow courts to screen some of these cases out early at the motion to dismiss stage rather than further along after the whole determination about whether or not it's the parity standard. So they seem to be looking for cost-effective ways to make this determination and get some things out of court.

Yeah. And now we come to the poop humor and more. As we suggested when we previewed this case, the argument was likely to get spicy for a bunch of reasons. You know, the topic of the suit, the products, the identity of one of the advocates, Lisa Blatt, and things did not disappoint. So let's just start out with this exchange between Lisa Blatt and Justice Alito. That is yet another entry onto the list of things that only Lisa Blatt would do. Could any reasonable person think that Jack Daniels had approved this use of the mark? Absolutely. That's why we won below. Really? Yes. Let me envision this scene. Somebody in Jack Daniels comes to the CEO and says, I have a great idea for a product that we're going to produce. It's going to be a dog toy, and it's going to have a label that looks a lot like our label,

and it's going to have a name that looks a lot like our name, Bad Spaniels. And what's going to be in, supportedly in this dog toy, is dog urine. Do you think the CEO is going to say, that's a great idea, we're going to produce that thing? No, but Nationwide ran a Super Bowl commercial with a dead child in it, and they had to pull it because it was such a bad idea. I don't know who approved that one. It was really embarrassing for them. So a reasonable person would not think that Jack Daniels had approved this.

I think if you're selling urine, you're probably going to win on a motion to — I mean, on a 12B6. But you're probably also violating some state law. But sure. No, no, you're not selling urine. It's exactly this toy. Oh, I thought you — I'm sorry. I thought it was — No, it's exactly this toy.

Oh, it says it contains urine. I'm sorry. Which purportedly contains some sort of dog excrement or urine. Oh, I'm sorry. Okay. My bad. The CEO is going to say, this is a great idea. Which purportedly contains some sort of dog excrement or urine. Okay, my bad. The CEO is going to say, this is a great idea. Well, just showing how confused I was suggests that I would be your perfect consumer.

Justice Alito, I don't know how old you are, but you went to law school. You're very smart. You're analytical. You have hindsight bias. Well, I went to a law school where I didn't learn any law. Okay, but it's just a little rich for people who are at your level to say that you know what the average purchasing public thinks about all kinds of female products that you don't know anything about or dog toys that you might not know anything about. And so I just... I don't know. I had a dog. I know something about dogs. The question is not what the average person would think. It's whether this should be a reasonable person standard to simplify this whole thing.

You know, I am simultaneously impressed with how Lisa managed to both shade Sam Alito and kiss his butt at the same time, right, by suggesting he's both old, but also that juries are dumb, unlike the very smart Sam. And I do like how she talks to them like they are normal people and not some sort of gods, but wow. That was just a lot. That was like watching an episode of Vanderpump Rules. I mean, that was reunion energy. It was was reunion energy. I am so glad you also have Bravo on the brain because part of me was envisioning. Wait, is this Scandaval time? It is. So I've been trying to get in a Scandaval reference to a main episode for several weeks.

Kate has no idea what we're talking about. I would turn off my, you know, when we do our Zoom, when we do this by Zoom, occasionally one of us will just turn off our video. Once we want to just check out of a conversation, just imagine I'm like, I've turned off my Zoom video for this portion of the discussion. It's more like I turned off it for her. I turned it off for you. I realize not everyone watches Vanderpump Rules. It is a reality television show that has been on Bravo for over 10 years that is undergoing a scandal of the century. Epic proportions, epic. I'm not even going to bother to try to explain it here,

but basically it's like if you watch Friends, it would be like if Rachel had been having an affair with Chandler for a year. Like that is basically what is going on. One of the Vanderpump Rules stars, Ariana Middix, her boyfriend of 10 years is cheating on her with another cast member. Anyways. We're not suggesting that's what's happening here, but we're saying it's chaotic. But Ariana showed up to the Vanderpump Rules reunion wearing a sweatshirt that said, 1-800-BOYS-LY. And a part of me is envisioning Lisa Blatt, like, standing at the Supreme Court lectern with, like, 1-800-BOYS-LY, like, telling Samuel, you know, like, what?

That's this energy. That's this energy. Exactly. I mean, this was, again, like, when you see oral arguments in real time, like people are like incredibly deferential to them. She's a repeat player. So, I mean, there is a level of comfort of going before the lectern over and over again. But, wow, this is comfortable. I mean, like she took her shoes off at the court.

And did want to acknowledge that Justice Alito does seem to know something about dogs. He had a dog named Zeus who used to come with him to work. Should we talk about some other things that Lisa did during the argument? Well, I mean, or that Sam did. I mean, like the Yale Law School erasure has got to cut. That's true. People in the courtroom really liked that. I mean, yeah.

It slaps. It slaps. It does. Everyone loves to hate on Yale Law School. It really brings us all together. So another thing that Lisa Blatt did during this argument that I thought was, again, displayed a level of comfort that no black woman has ever had at the Supreme Court is to tell Justice Sotomayor that she may have made a humorous joke. So let's roll that clip. One of the political parties, Animalogans, and makes a T-shirt where the animal looks drunk, accompanied by a slogan,

time to sober up America. And they wear that proudly at a protest or here in court. Do you want my answer? She sells these T-shirts on Amazon. Okay. The political party gets a consumer survey purportedly showing that 15%, 20%, 25%, 10%, whatever number we make up, okay, think the activist needs the party's permission to copy the logo. So, I'm a judge.

I know what I would do. But tell me what you would do. And do they have to go through a full trial under the Polaroid factors to decide this case? Okay, so, I mean, first of all, that's funny. Your example, I'm going to give you that. I mean, people need to stop playing in women's faces. Like, what was that? Don't you think the KBJ interaction was even crazier? Okay. So there's that moment. And then we will maybe just go immediately into an exchange that she had. So Justice Jackson

asks a long question and Lisa really like turns it up in the response. So let's play that now. They are doing that. If it's being used as a source identifier, then I suppose we get into all of the questions under the Lanham Act test as to whether or not there's trademark or infringement. What's wrong with that? Well, unfortunately, a lot. And with respect that literally you're taking language in the text of parity and in the text of 1115B4, which you had a Supreme Court case on, KP permanent makeup, saying other designation of a source are actually exceptions under two statutory provisions that don't appear in infringement. So I'm fine with you making up stuff. No, but I'm not making it up. I mean, you said here this morning, and I wrote it down, that the whole confusion issue.

Do you agree that confusion is the heart of the Lanham Act? Confusion has— She kept her cool. Justice Jackson did so well there. But, like, I feel like my face is getting hot just, like, hearing that audio. Do you remember at her confirmation where Ted Cruz was just going at her, and she literally took that pause and was like, do I risk it all? Like, do I risk it all? I think she did that here. Because I was like, do I risk it all? Like, do I risk it all? I think she did that here because I was like, I'm sorry, what?

Making stuff up, I know. Part of me wonders, like, does Lisa hate the court? Does she hate some of the justices? Or does she just talk shit about them, including to their faces? In which case, I wonder, what does she say about them behind their backs? It's just a fascinating dynamic. And here it was just really weird to answer to Justice Jackson, you guys can just make stuff up.

I mean, Justice Jackson has been on the court for a hot minute and wrote a unanimous statutory interpretation opinion. Like, she has been making shit up. And another oddity of Lisa being so extra with Justice Jackson is that Justice Jackson, I thought, was again awesome in this argument and seemed to understand that trademark law is limited in part because of First Amendment concerns. And she's very different from Justice Breyer, how he was at argument. But I did like Justice Jackson asking what's wrong with that. That was a classic Breyer question formulation. It's very nice. And I just found it kind of endearing that she used it.

We predicted there would be some porn references. and we have trimmed the ones that are really not safe for home listening around children, but she started her rebuttal with the following. What the other side, and I don't hear you guys talking about, is the half of speech that no one likes, the pornography and the poison. And it is hard for me to see how you can say that the trademark owner doesn't have an interest in something that approaches compelled speech if their mark has been using in porn films and porn toys and sex toys and people are profiting off of that. These are dog toys? We're way past dog toys. I told you Stevie Humps her love rainbow. I mean, the case is submitted.

Predictions? Hard to say. The chief asked only one question. Justice Barron, Justice Kavanaugh didn't ask any at all. This argument was probably a little too uncouth for Justice Dolores Umbridge to get. But yeah, so hard to say. Okay, so we actually wanted to pivot now to flag an important state court decision close to home. So just over a week ago, the Hawaii Supreme Court, in a unanimous opinion authored by Justice Eddins,

issued a first-of-its-kind ruling finding that citizens have an affirmative right under the Hawaii state constitution to a life-sustaining climate system, and that this affirmative right should shape the way that government actors and agencies carry out their duties and exercise their powers. So we wanted to take a couple of minutes and really talk about that opinion. So in brief, the case involved an effort by the Hawaii Electric Light Company to get the Public Utilities Commission to approve a power purchase agreement that would have involved converting a plant and having that plant produce energy by burning eucalyptus trees. The Public Utilities Commission rejected the proposed agreement, finding that it would have emitted substantially more carbon than

it sequestered, and that even though it made promises of eventual carbon neutrality, those promises were largely speculative. The power company challenged that denial in the Hawaii Supreme Court, which affirmed the denial, finding that the Utilities Commission acted within the scope of its constitutional and statutory authority. And significantly, the Hawaii Supreme Court grounded its ruling in part in Article 11, Section 9 of the Hawaii State Constitution, which guarantees each person's right to a clean and healthy environment, which according to the court, also encompasses a right to a life-sustaining climate system. And we have talked a lot about the importance of state constitutions and the fact that state constitutions are often more generative of individual rights

than is the federal constitution. And this is one of those situations. And we should also note that this opinion was unanimous. And this reasoning actually breaks some new and important ground linking this right to a clean and healthy environment to the Utility Commission's obligations to consider greenhouse gas emissions and making its regulatory decisions. So has a lot of shades of Massachusetts versus EPA, but going further, like doing more. And again, from a state constitutional law perspective. Yes. And just in drawing out some of the comparisons between this case and some federal court decisions, I wanted to also highlight in a separate concurrence, Justice Wilson wrote to draw attention to the urgency of the climate crisis and to note that the right to a life-sustaining climate system should be understood as a component of not just the Hawaii Constitution's right to a clean and healthful environment, but also the due

process clause of the Hawaii Constitution and that Constitution's public trust doctrine. And this could be relevant in having potential application to other state constitutions that might not have, you know, parallel or analogous provisions to the Hawaii Constitution one regarding a clean and healthful environment, but have similar language to due process and public trust that could do similar work. And as I suggested, the concurrence kind of draws out a comparison between state courts action on climate and federal courts, at least the current era on the federal courts.

So the concurrence details federal courts abdication on climate, including the United States Supreme Court's decision in West Virginia versus EPA, which had invalidated the EPA's Clean Power Plan. And the concurrence described that case as federal courts abdicating environmental rule of law, which I thought was both very evocative and accurate and a distinct take on what the Supreme Court did there, kind of abandoning ordinary principles of interpretation and describing, you know, the set of cases in which that occurs. The concurrence also offered an alternative approach to identifying what rights are protected by constitutions implicitly. That is, what rights aren't specifically enumerated in the constitution's text, but are nonetheless protected.

And it was a different approach than the history, traditions, or deeply rooted approach that the U.S. Supreme Court has taken to identify... Not a lot. Right. Good thing, too, to identifying constitutionally protected rights, you know, here under the state constitution rather than the federal constitution. So the concurrence notes how climate affects native communities in particular.

It describes climate as a human rights issue and how environmental justice disproportionately impacts native peoples, calling to mind what you had said, Melissa, about the work being done at the University of Hawaii's Kahulia'au Center to show how climate issues and environmental issues have been used as a tool for colonization. And the concurrence also emphasizes that the legislature has repeatedly recognized, that

is, the Hawaii legislature has repeatedly recognized that climate is an issue in various laws and resolutions that the legislature has passed, and in doing so incorporates a broader conception of who we the people are, you know, that are recognizing our constitutionally protected rights and the foundations of, you know, sound government systems and contemporary movements and values into the analysis rather than, say, returning us to the dark ages. It's almost like we the people are alive now. Yeah, almost. Unless Matthew Kaczmarek has anything to say about it. But the beautiful thing is that he has nothing to say

about the Hawaii Constitution, right? Yes, exactly. Give them time. Until the independent state legislature theory becomes the independent federal courts theory, state courts can't do nothing theory. Okay, well. Oof, that got dark.

That did. We were going to end on a high note. I know, I know. I used to do that. I always do this. I have a high note, I have a high note, which is to say, as Melissa and I talked about on a recent episode about the sort of background

of the marriage equality fight, the Hawaii Supreme Court is no stranger to setting in motion legal theories that fundamentally change our law, right, all of our law. So in 1993, the Hawaii Supreme Court was the first court to find a constitutional right to marriage equality. Also, they were in the Hawaii Constitution, and 20 plus years, and many, many political and legal twists and turns and developments later, the United States Supreme

Court declared marriage equality the law of the land. So the Hawaii Supreme Court has been sort of showing all of us the way for a long time. And this, I think, is a really important decision that is going to have repercussions both in Hawaii and well beyond. And yet another reminder about the importance of state courts as we are going to the Honolulu of Lake Mendota next week, where there will be an election that will determine control of the Wisconsin Supreme Court, the most important election in 2023. An election that we can all take part in, not by voting, but by helping out. So we can help out from afar, whether you're in Hawaii or in Wisconsin or somewhere in between. You can volunteer, you can phone bank, you can

make people aware of this election. It's an off-cycle election about the Supreme Court. It doesn't get a lot of attention, but it's really pivotal. Wisconsin is a state that has been gerrymandered beyond recognition. This state Supreme Court is going to have a lot to say about reproductive rights, a lot to say about gerrymandering, and they could use your help in getting out the vote. So if you have some spare time, you can go to Vote Save America, another crooked enterprise, and find out how you can volunteer your time there. But again, the importance of state courts and especially the importance of Hawaii. So this is our episode for today, live from the Aloha State. We are so glad to be here. I really want to thank everyone at the University of Hawaii Richardson School of

Law, and especially Dean Camille Nelson, Richard Chen, Susan Serrano, and the Inouye Committee for inviting me here for a week. It has been absolutely fantastic. I have been so delighted to be here. Thank you so much for this opportunity and for allowing me to bring my ladies with me. So thank you so much. Mahalo. And that's all we have today. Don't forget to follow Crooked Media on Instagram and Twitter for more original content,

host takeovers, and other community events. You can also follow us on Twitter and Instagram. And if you are as opinionated as we are, and if you like our show, and only if you like our show, consider leaving us a review in your favorite podcast app. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, me, Melissa Murray, and Kate Shaw. It's produced and edited by Melody Rowell with audio engineering by Kyle Seglin, music by Eddie Cooper, and production support from Ashley Mizzuo, Michael Martinez, Sandy Gerard, and Ari Schwartz, and digital support from Amelia Montooth. Aloha. Before we go, we wanted to extend a special aloha and mahalo to strict scrutiny superfan

Bob Merce, who has apparently been sharing the strict scrutiny love with the entire island of Oahu. Thank you so much, Bob. It was wonderful to meet you. It was also great to meet the strict scrutiny superfans at the University of Hawaii Richardson School of Law, including Maddie, Joshua, and many more. Thanks, and we hope to see you again soon.