Strict Scrutiny - Join Your Conflagrations

Episode Date: August 26, 2020

Leah, Kate, and Melissa are joined by Josie Duffy Rice, the President of The Appeal, to discuss the partnership with The Appeal. They also discuss breaking news,  some criminal justice issues on the Court’s docket last term and this upcoming term, before closing with some recent advances on #brorights. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. And as we mentioned in our term recap, this podcast, in addition to being so fierce, it's fatal in fact, is now a

project of The Appeal, an organization that produces original journalism and commentary and covers how politics, policy, and the legal system affect vulnerable communities in this country. And actually, that's why we're so fierce and fatal, in fact, because we are now a part of the appeal. So we are really excited about our new partnership. And while we are still in the summer schedule, we wanted to stop to introduce our listeners to the appeal, to the extent there are listeners who might not already know about it or be super familiar with the work that it does. As we mentioned, one of the reasons we are so excited about this partnership is that it will allow us to deepen our coverage of the criminal justice system and criminal cases on the court's docket in particular.

And so to help tell us more about the appeal and highlight some of the big criminal justice cases from the docket last term and some upcoming ones to watch this term, we're delighted to have with us Josie Duffy Rice, the president of The Appeal and the host of the acclaimed Justice in America podcast. Josie graduated from Harvard Law School and worked as an attorney at the Center for Popular Democracy. She has also written about criminal justice, prosecutorial accountability, race, gender, culture, and politics for The New York Times, Slate, Gawker, Ebony, and a host of other outlets. So welcome to Strict Scrutiny, Josie. Thank you so much for having me, you guys. I'm really excited.

To get us started, we'd like to tell our listeners a little bit more about The Appeal, the awesome organization that we're now partnering with. So Josie, could you just tell our listeners a little bit about what The Appeal is, how it got started, and what kind of work you do? Sure. So The Appeal, like you all mentioned before, is a website that produces original journalism on how policy, politics and the legal system impact America's most vulnerable people. And up until about a few months ago, we mostly covered the criminal justice system. So we were mostly looking at local criminal justice, right?

Prosecutors, police and how local systems impact people's lives more generally. In the age of COVID, we kind of realized that we would need to expand that, that we couldn't really just cover the criminal justice system when it's intersecting with healthcare, housing, labor so intimately. So we've expanded a lot in the past few months. But traditionally, our coverage and our focus has been the criminal justice system. And we're trying to kind of, I think we're trying to do a couple of things. One is that we're really trying to shine a light on local stories for a national audience. When I started covering criminal justice a few years ago, there wasn't anybody just covering

prosecutors, right? There wasn't really a lot of focus on the local systems. And when there is a focus on the local systems, usually it stays local. But we were trying to highlight how intricately woven so many of these positions are with each, not just in a city, but how many patterns you see across different jurisdictions when you're paying attention to kind of the national picture. The other thing we really wanted to do was we wanted to make sure that we were identifying who was causing mass incarceration and how. There was a lot of talk about mass incarceration, but this is an extremely opaque system, as you all know. And often when you talk to people,

they say, okay, I really care about mass incarceration. I really don't like police brutality. But in terms of how we get from A to Z, there's not always a lot of knowledge of who's doing the things that are leading to the end game. And when you see coverage of this stuff in the media, often it's, there's no direct object. There's no person who's actually caused the harm, right? The harm has just been caused. And so we started the appeal a few years ago to try to cover those things. And we've grown and we are so excited to have strict scrutiny as part of our team now. It was like, it made everybody's year when we announced this news, you guys made us seem very cool. So thank you. You guys made us seem really cool. I like how

you just really put it like the harm is caused without anyone causing the harm. It's like mass incarceration without, you know, people pushing carceral politics. Right. Someone was wrongfully convicted. Someone was shot. Someone was wrongfully convicted. Something bad happened. Yeah, mistakes were made. And it's like, well, can we get a name? Or if not a name, at least an office. And yeah, so we're not terribly popular with most prosecutors in the country, but I think it's a small price to pay for. But hopefully soon with a wave of progressive prosecutors. Hopefully we're going to be their favorite news outlet when everything, when we solve mass incarceration, we're going to be very popular,

which I think should be by like December or something. Yeah. First the pandemic, then now. Right, right, right. I found that explanation, Josie, of what the appeal does so clarifying. And it really is unique in a couple of ways. And I think one is that it does really have this kind of local focus, but because it is a national platform and, you know, you have this kind of deep bench of expertise,

there's this kind of deep bench of expertise, there's this kind of ability to both really focus, especially in a moment in which local journalism has been so decimated on local stories that might not otherwise get the attention that they deserve, but to connect them to other similar phenomena elsewhere and other dynamics, including structural ones that unify, right, or create sort of through lines between these disparate events. And so, and that is, there's not really anything else like it that is hyper-local in focus, but also is able to zoom out and tell bigger national stories. And so I think that's why, one of the reasons, at least I, and I think we are such big fans of the appeal, part of what I think

we are trying to do is almost something, we're not, you know, doing journalism at all in the way that you guys are, but so commenting on what the Supreme Court does, which does seem kind of abstract, but to try to sort of through the other end of the telescope or something, understand or try to break down and explain the kind of local on the ground effects of some of these decisions handed down from on high. And so I think that there is something unifying, very different kinds of projects that we're doing, but something that I think that makes the partnership sort of make a lot of sense. So we are really excited about it. Democratizing this information, right, making it accessible to people is a major way to open the door to have accountability, I think, in the system.

And I find that people find it very intimidating to think through the implications of some of this because they feel like they don't have the education or they didn't pay the $300,000. They're not in the amount of debt that the rest of us are in. So they think that, you know, they haven't really earned the right to analyze and contextualize and criticize these systems, right? And what I think the appeal is trying to say is that these people work for you functionally in a lot of ways. I mean, it's different, obviously, with the Supreme Court. But when we're talking about DAs and sheriffs and local elected officials, these people represent you, they work for you, and they owe you an explanation for the decisions that they make. And so we're trying to always reiterate the importance of accountability. And again, like you said, Kate, I think in an age

where local journalism is just being destroyed, it makes the future of accountability look even scarier. And so our very small team is trying to shore up all the criminal justice coverage that we possibly can in the country. And we're going to keep trying to do that as long as we can. That makes me feel like we are newly re-energized and like we're more than just a bunch of ladies on a podcast, but we are actually doing something meaningful. So thank you for that. You are. I'm not even, I'm not kidding, guys. It really is. It's so important. I mean, I even see in like my family and my friends who don't have law degrees, it really makes a big difference when they can have access to context and analysis. And they are all learning slowly that lawyers aren't actually that smart, which even within the legal profession, you talked about wanting to democratize information to reach a more general audience. There's even a weird hierarchy within the legal profession where somehow you have a greater claim to talk about the Supreme Court and project knowledge about the Supreme Court.

And importantly, to criticize the Supreme Court, you know, only if you speak about it in a certain way or have certain professional backgrounds. And like we think that's wrong, too. And so, you know, again, part of the goal of the podcast is democratize it for the legal profession as well as, you know, an audience larger than that. Yes, absolutely. So this is all to say we are just so happy and excited to be part of an organization that's just burning it all down. Because we were doing it on a small scale and we're really excited to join your conflagration. I want to just take that clip and just play it anytime anybody comes to theappeal.org because I really find that that's the best summary of what

we're trying to do. But I'm so, so glad you guys are part of the team and you're the other podcast now. We have two. It's so exciting. It's huge for us. So thank you so much. Before we turn squarely to the court and to the docket, I want to stay on the appeal and on you, Josie, for just another minute, which is that I kind of wanted to ask you how you moved from practicing law full time into kind of legal journalism and journalism more broadly, sort of how you would describe what you do right now, kind of with respect to the worlds of law and journalism and kind of how you would describe what you do right now, kind of with respect to the worlds of law and journalism, and kind of how you got to where you are right now? Sure. So I think the short answer is that I wasn't a very good lawyer.

And I say this all the time. And people always say, like, no, there's no way that's true. And I'm like, no, guys, I promise you, I was not I wasn't the worst lawyer in the world, I hope I mean, but I was certainly given the things we, I wasn't the worst lawyer in the world, I hope. I mean, but I was certainly... Given the things we've been talking that have been happening at the Supreme Court and the Solicitor General's office over the last year, I can promise you, Josie, you are not the worst lawyer. I at least had a little bit more humility than some of these other lawyers. So I wasn't willing, my judgment was a little better. But I started, I left, when I left law school, I went into a policy job.

And I kind of, and I really liked the work I was doing. It was local policy. And it really was the thing that sort of, that and working at the public defender's office before I started law school really underscored for me the importance of local politics and this sort of like ability for like local systems to get away with anything. And so I was working for an organization that does and did progressive and local policy. And I really, I enjoyed the people and I enjoyed the goals, but it never really felt like the best way that my brain worked to make change. And I had wanted to actually be a journalist. And then I was like, well,

does journalism really do anything? This was 15 years ago or whatever when I was in college. And I, you know, does it really like is probably the best way for me to make an impact is to go to law school. And like, I remember sitting in CivPro, this must have been day like five. And I was like, this was not a good idea for me. I was like, it's too late. I'm here. I like took out the loan. It's like, it's I'm learning a lot. But this is just not the best way for me to kind of change things. So I got really lucky when I left that policy job, sort of not knowing what was going to happen, what I wanted to do next, but knowing that that wasn't the work for me. There was an advertisement on Twitter, of all places, of course, the one good thing, the one piece of joy Twitter has brought to my life was that there was a job

listing to cover prosecutors at Daily Kos, which I didn't know much about at the time, but it was a great place for me to start. There was a lot of freedom and there was nobody else covering prosecutors at the time, right? This is 2015. Like the term progressive prosecutor was not a thing. Kim Fox was like on the verge of being elected. five years now, but it's, I've just seen this field change drastically. And I think it goes back to an earlier point that, that you guys were making that even a little bit of accountability, I always talk about the ROI on this, on this work, because there's, you know, you can cover Trump

and you're probably not going to make a dent in a lot of what he does. He's, it's just very hard to, you know, to get one, one article or one thing to kind of shift his perspective on stuff. But these, we were talking about elected officials who had never been criticized, who had been doing whatever they wanted for so long. And you could, and people didn't even know their names. And so the advantage there might be that they're capable of reading, but you know, right right exactly i actually thought about saying it and i did not on like a parallel mind meld for weeks now it's silly to imply that the only thing holding trump

back is like the amount of coverage of him but i just just just you know there are other barriers right there's a lot. We have a lot to work through. In general, I just found that you could say like, hey, what's up with this? What's up with what's going on in this place? And it would change. It was crazy.

And it's still, I think that, I think we've, the more kind of focus there is, the more entrenched some of the behavior becomes. But on the other hand, like really you do, you can make a lot of change this way. And my legal background has helped me sometimes, even though I've, I'm still, I don't know if the debt outweighs the help, but one day I will hopefully pay it off and feel differently. Well, with that introduction, thank you. And it's great to have more context about the appeal and your role in it. This is the part of the podcast,

though, where we induct you into the ranks of the Cirque Scrutiny Cassandras. So Josie, this is the part where we do our Cassandra watch. And I should note, I received an email from a listener that, you know, TLDR, the email was, who the F is Cassandra? So I realized that we had not properly explained the provenance of our term Cassandra. For those who don't know, Cassandra is a Trojan princess from the Iliad by Homer. And she is the sister of Hector and Priam. And she predicts the Trojan War. And in fact, she actually warns Troy that the horse, the gift from the Greeks is actually a trick and they should not be deceived.

And no one believes her. And we are always channeling Cassandra here on Strict Scrutiny. We always see where things are headed and no one believes us, but we say it anyway. So we have some SCOTUS news to cover and it's basically shaping up to be the kind of news cycle where we are over and over and over again confirmed as the legal community's greatest and most overlooked Cassandra., Josie, we hope you're ready to be indoctrinated into our little band of merry prognosticators. So, Kate, why don't you get us started with the first episode where we, again, predicted the truth and were dismissed summarily?

This one, I think people might have had a suspicion that we were right about. So, there was a lot of question about when the court granted cert in the latest challenge or sort of full frontal challenge to the Affordable Care Act, there was a question about whether the court would schedule the argument for prior to or after the November election. And lo and behold, it has been scheduled for the last day of the sitting, November 10th, which, as people probably realize, is a week after the November election. This is a little dodgy because it looks like the court may have deliberately put off the argument in the ACA case until after the election. One potential piece of supporting evidence is that the Jones case was

granted after the ACA challenge scheduled for argument before the ACA case. We don't know exactly why the justices make the scheduling decisions they make. This is one of the many things that they're not at all transparent about. But it seems convenient, at least for the president, right, who I'm sure wants attention deflected from his administration's sort of full frontal attack on the constitutionality of the Affordable Care Act in the midst still of this raging pandemic. It is also the case that Fulton v. City of Philadelphia, which is another important case about religious exemptions from generally applicable civil rights laws, is scheduled for the day after the election. That one, I am not sure, was necessarily deliberately put off until after the election, although potentially it was.

But for folks who are wondering whether we would be sort of, the public would be focused on these important questions and importantly, the Trump administration's positions on these important questions in the really significant days and hours before an election. No, it turns out the Supreme Court's scheduling has really advantaged, I think, the Trump administration with respect to both of those cases. Yeah, because like imagine if the morning of the election, every headline in every major newspaper read, today the Supreme Court hears the Trump administration's argument to demolish the Affordable Care Act, including the protections for people with pre-existing conditions, which at this point would include people who have acquired the coronavirus. Yeah, and it is the case, as we've pointed out before, you know, like briefs get filed and briefs get attention. And so we will certainly be talking about the substance of the arguments that the Trump administration is making in this case.

But the public attention just isn't focused on the court's work until oral arguments. And it turns out that is not going to be until a week after the election. We have a development in one of the cases that was decided at the end of the court's last term, Trump versus Vance. So the district court rejected the new challenges to the New York District Attorney subpoena. Judge Marrero rejected the president's claim that he should not be subject to a grand jury subpoena because the subpoena was impermissibly broad. He said that the president's objections didn't mean that judicial process was suddenly transformed into an incidence of incapacitating harassment. Notwithstanding this rather quick ruling, which was unsurprising given

the weakness of the president's challenges to the subpoena, the claim still has to work its way up to the Court of Appeals. And after that, the Supreme Court before the subpoena is likely enforced. And even then, the grand jury's confidentiality rules mean we're not going to really see anything that is acquired as a result of the subpoena, at least initially. And Trump said quickly that he's taking the case all the way back up, right? So this is something that's going to take some time to play out. Shocking. In other shocking news, an Eighth Circuit decision, Hopkins versus Jekyll, the Eighth Circuit adopted John Roberts's reasoning from June Medical Services. And if you'll recall in our discussion of June Medical Services, this was the episode entitled Save Your Yarn,

we surmised that the Chief Justice's concurrence, sole concurrence in that case would be controlling and the Eighth Circuit apparently agreed, adopting its reasoning and basically jettisoning the reasoning of Whole Women's Health versus Hellerstedt, which is what the plurality in June Medical Services had used for its analysis of the case. So again, very interesting development. And for all of the people on Team Uterus, we told you so. Okay. Other news. Thursday morning, I woke up here on the West Coast to the news that not only was Steve Bannon on a boat, he was getting arrested by postal service inspectors while on a boat.

So that is burying the lead a little bit. So early Thursday morning, federal law enforcement officers boarded a $35 million yacht anchored in Westbrook, Connecticut to arrest Steve Bannon, who at the time was reading and drinking a cup of coffee. Bannon- This is like the opening scene of Arrested Development.

Yes, it is. Where Lucille and Buster see these law enforcement officers descending on their boat, and they're like, is that the SEC? Do they have boats? Well, who's Job in this whole thing? It kind of feels like Steve Bannon's all the characters,

you know? He has a little bit of everybody. Lucille is the one, I think, who has the Bannon's all the characters, you know? Except Lucille. Lucille is the one, I think, who has the most sense in all of this and just can see everything happening. In any event, Bannon, along with three others, was charged with conspiring to cheat hundreds of thousands of donors of a GoFundMe campaign to privately finance the construction of a section of the border wall.

So there were the conspiracy charges and then the substantive charges for wire fraud and money laundering as well. Bannon went in and pleaded not guilty and then came out to the waiting press corps and said that this entire fiasco was basically because people did not want them to build the wall. And question, was the wall ever built? Nobody knows. According to the indictment, Bannon and company allegedly siphoned money from the project and paid themselves using nearly $1 million in Bannon's case to pay off personal expenses and to pay one of the other alleged co-conspirators a salary, but not to pay for the $35 million yacht, which is apparently on loan from a Chinese billionaire. So we can't call this a case of voter fraud since it wasn't used for the...

Too bad. So Leah and I both noted on Twitter that the timing of these indictments was really interesting because just a month ago, if you'll recall, life comes at you fast, you probably had forgotten, but Attorney General Barr had been trying to strong arm Jeffrey Berman, the U.S. attorney for the Southern District of New York, into resigning so that he could be replaced with a handpicked Trump successor who knew very little about criminal prosecutions. So weird. So, so weird. And Jeffrey Berman's successful resistance of that effort to make him go quietly may well be responsible, right, for the installation of his very respected number two as the now number one in the office, the office that, you know, is now responsible for these indictments. So I think that

Berman actually probably gets a lot of credit in what played out with Bannon this week. It was a very poor strategic decision on the attorney general's part to get this guy to go quietly. And now the implication, obviously, is that this is why we could have told him. And don't you kind of wonder, too, like, is this it? Like, right. I don't know. I mean, it was one of those rare New York Times push notifications that like genuinely made my jaw drop. It was what? Where? Oh, my God. So it does feel to me as though there could be another shoe or two to drop from that federal district, you know, before the year 2020 is out. Absolutely. I can imagine a second stage to this where the general counsel of the fund the wall. Who would that be, Leah? That would be Chris Kobach, is subsequently implicated in this imbroglio.

Chris Kobach is, of course, a person who was ordered to complete court-ordered CLEs, given his deceptive conduct in litigation and attempting to defend a citizenship requirement before voting. But that's just one of my personal interests. Voter fraud, voter fraud. It's all running together. Exactly. So that's all the very immediate breaking news for now.

Who knows where we'll be a week from now. But so let's get on to the heart of the episode, which is, as we have been saying, one of the reasons we're really excited about our partnership with the appeal is because it's going to allow us to deepen our discussions of criminal justice issues. In addition to issues affecting political equality, political power, those things are very much connected to criminal justice issues. We've done already a few episodes that are retrospectives on the past term, but we haven't totally exhausted the topic because this term was incredibly significant. And we actually haven't had a chance to go deep, at least as deep as we have wanted to, on some of the criminal justice issues that the court decided just this past term. So we're going to just take a little bit of time to go a bit deeper on some of the cases that we may have mentioned in passing,

but haven't been able to devote the time that we would like to on this episode. So Leah, do you want to start us off? Sure. And I'm going to do two because it's Shark Week, motherfuckers. So is it actually still shark week wasn't that last week how long is shark week don't you feel like every week is shark week i feel like shark week happens multiple times a year it's like infrastructure week it just keeps happening and i just don't know how much about sharks there could be how many weeks can sharks fill up i don't know i don't know but when don't know. But when my governor is recorded on a hot mic saying it's Shark Week, motherfuckers like it's Shark Week.

Big wretch. Exactly. Exactly. So one of the criminal justice cases that I wanted to highlight was Hernandez versus Mesa, just because it is a criminal justice case that didn't really present as a criminal justice case, given the particular facts and posture. This is, of course, the case involving a shooting of a 15-year-old Mexican national by a Border Patrol agent. And the question in the case was whether the family had what's called a cause of action, essentially an authorization to sue the federal officer who shot and killed their son. The court ultimately said they do not, and part of why this case is so significant is that it has unclear and uncertain ramifications for what is happening in the racial justice protests around the country, and in particular

in Washington and Oregon, because in those places and potentially others, the president and attorney general have deployed federal officers nominally to protect federal property, but also to engage in more general policing and suppression of the protests. And as a result, there have been allegations that these officers are engaged in excessive force and other constitutional violations. But then the question is, well, what can you do about it? And the question in Hernandez is when, if ever, you can sue federal officers who are engaged in constitutional violations for damages. And what Hernandez suggested is those circumstances are increasingly rare. If they present a new context or if they're extraordinary circumstances, counseling, hesitation, and allowing a cause of action, that those would be reasons not to allow it. And so we see some of the lawsuits challenging these federal officers'

deployment happening in the lower courts already. But Hernandez could potentially be significant for those cases that are seeking monetary relief. Great. I want to highlight a case that we talked about. Wait, no, I have a second. It's Shark Week, Melissa. It's Shark Week. That's like an RBG stall where someone starts talking. She's like, no, this is not done. You just did an RBG. I just did the RBG stall. Well, it's such a power move too. So RBG, for people who don't know, pauses for an interminably long time, mid-thought sometimes. And it's natural to begin speaking five or six or seven or 10 seconds into a pause, and yet she's often not finished. And if you do make the mistake of stepping into a sentence or a thought that RBG has not yet completed, the dagger she will shoot you are really something to be avoided. So I do not think

Leah just deployed those daggers at Melissa's interruption, but I will note that was an RBG power pause. I got a very big settle down bitch vibe. OK, so then quickly, the other set of cases I would just highlight are, of course, the COVID related voting cases. I know we talk about them a lot, but it's because they're important and out of Wisconsin, I think of as criminal justice issues because in the Wisconsin election that the court forced voters to go out in person in the midst of the pandemic, there were a bunch of state judges on the ballots. And those state judges will be very significant to criminal justice issues. And so you can only implement criminal justice reform at state and local level if those state and local elections are representative to democratic politics. And then the second case is more directly highlighting the relationship between voting rights and criminal justice, and that's Rezor v. DeSantis. That is the case where Florida enacted by initiative a measure that granted the

franchise to persons who were previously incarcerated. But then the state legislature and state courts took that away for persons who had not yet paid all of their fines and fees. A district court held that was unconstitutional. The Court of Appeals initially affirmed that ruling, but then the full 11th Circuit put it on pause and the Supreme Court did not disturb the 11th Circuit's decision to put on pause the injunction. So again, this underscores the deep connections between, I mean, political rights and criminal justice, because even when you accomplish these super significant criminal justice reforms, there are a bunch of institutions like the courts that can blunt their effectiveness.

Now I am done. It's almost like there's an op-ed about that, about your political agenda and the court's thwarting of it. Anyway, you can take that out, Melody. No, don't take that out, Melody. Melissa wrote a kick-ass op-ed about the importance of courts as entities that either can facilitate or can thwart the implementation of a policy agenda. So when the Democrats over the course of, you know, four nights, the DNC almost uniformly fail to focus on the Supreme Court and the courts in general, Melissa calls them out for doing that. So check out her out there in the Washington Post. Melody, don't cut that. What are courts anyway? So, okay, so it's not Shark Week anymore. I want to highlight just one case, Ramos versus Louisiana, which I found endlessly fascinating, this term. So in Ramos, which we've talked about before, the court declared Louisiana's rule, which allowed for non-unanimous jury convictions.

They held that it violated the Sixth Amendment's right to a jury trial. And in doing so, the court overruled two precedents from 1972, Apodaca v. Oregon and Johnson v. Louisiana. As the court explained, these earlier decisions were out of step with the Sixth Amendment and the longstanding assumption that jury convictions must be unanimous, at least at the federal level.

And the court, interestingly, also noted that not only was Apodaca and Johnson a set of outliers constitutionally, but the roots of the Louisiana rule and the Oregon rule, Oregon had roots of the Louisiana rule and the Oregon rule, Oregon had once had the same non-unanimous jury rule, could actually be traced back to racism. In Louisiana's case, it was traced back to Reconstruction and the 1898 State Constitutional Convention, which explicitly sought to enshrine white supremacy by limiting the power of blacks

on juries. And in Oregon's case, it was traced to the 1930s where the Ku Klux Klan came out in favor of the non-unanimous jury rule that was then adopted. And so although the rule had subsequently been reaffirmed in the 1970s in Louisiana, the court nonetheless looked to its racist origins as further evidence of why it should be overruled or invalidated and the cases upholding it overruled. I thought this was really interesting for lots of reasons.

So one, obviously we can all get on board with the outcome here, which is to say that you can no longer have non-unanimous jury convictions going forward. But I thought that the dissents here were really interesting. Certainly the lineup was interesting. It was Justices Alito and Kagan, along with Chief Justice Roberts dissenting. And Justice Alito went on a huge thing about the incivility of talking about race, which I did not find as interesting. But I thought it was interesting that Justice Kagan joined this. And I speculated as to why it might be, like maybe she was just sort of accruing capital for later for other cases where other precedents hung in the balance, like for example, Bakke versus Regents of the University of California, which is also a 1970s case with a very fractured set of opinions

in which Lewis Powell writes for himself and apparently dictates some of the future of this doctrine. I think that was one of the things that she was thinking about. But on greater reflection, I'm convinced that in Ramos are the seeds of, I think, a campaign to maybe use race more extensively to overrule contested precedents, including precedents like Roe v. Wade. So hold on for a minute. What does Roe v. Wade, a case about abortion, how does it have anything to do with Ramos, a case about jury trials? If we go back to 2019 with Justice Thomas' concurrence in Box v. Planned Parenthood of Indiana and Kentucky, where he wrote this really interesting opinion linking abortion with the history of the birth control movement and Margaret Singer and eugenics, and basically argued that abortion could be a tool

of deracination and sort of suggested inaccurately and misleadingly that abortion was sort of laced with this racist taint and origin story. I think if you take that seriously, you could go forward and use Ramos and this whole idea of race being a predicate for reconsidering a past decision to overlook lots of decisions, including Roe versus Wade. So Ramos is one of these decisions where I think the outcome is really progressive, but not surprisingly, embedded in it might be the seeds of something that others would find, I think, less progressive. This sounds like a fascinating topic for a law review article, Melissa. Someone should write that. Melissa has. It's brilliant.

Josie, am I off the mark here? No, I'm now really thinking about that. I think that's really interesting. I mean, the Ramos case to me, watching the past few years, the issue of non-unanimous juries, first in Florida, then in Louisiana, then in Oregon, has been interesting politically in a different way, which has been the response from the local criminal justice infrastructure. There was a quote from John Derosier, the DA in Calcasieu Parish in Louisiana, where he testified in front of the legislature and sort of said, look, we know this comes from racist roots, but it is what it is. And that quote kind of followed him around,

made it to billboards in his town. I mean, he still got reelected. He's fine. But it caused a lot of pushback from black state legislators in Louisiana. And it reflects really just what we've seen in terms of local criminal justice. Starting in Florida a few years ago before Hearst and then kind of moving to Louisiana and Oregon, I can't tell you how much pushback there's been from local DAs on this non-unanimous jury issue in particular. And so much of it is just that this makes our job harder. And there's kind of like these, a lot of procedural pushbacks, like we don't actually have the resources to convict people if we have to get everybody to agree. Well, I mean, to be clear, I truly hope I'm wrong and that this is not going to be an instrumental and opportunistic use of race to reopen settled precedents going forward. I just, again, the Trojan horse, right? Absolutely. Like embedded in this gift could be sort of the undoing of something else.

I hope you're not Cassandra on this one, Melissa. I have a feeling you are. I really hope you're not. And I have a feeling my track record is good. OK, so so let's switch gears. I want to talk about actually I want to highlight a case that we talked about a decent amount in the run up to the argument, but not much in the wake of it. And that is the Bridgegate case, Kelly versus United States. It was decided in early May. And so it had sort of faded by the time a lot of these end of term wrap ups were getting written. But I do think it's an important case and it's worth pausing over for a moment. So this was the case just to remind people involving convictions arising out of the so-called Bridgegate scandal. So this is when officials at the Port Authority and in then New Jersey Governor Chris Christie's office hatched a plan to reroute traffic on the GW Bridge in order to punish the mayor of the town of Fort Lee for not supporting Christie's re-election bid. Normal, healthy behavior.

It's so egregious. And the court does this thing that it sometimes does, which is to say, sure, this is unseemly, this is tawdry. But it's not a violation of federal criminal laws. And like and that's so so so question I actually do want to unpack is this, you know, just how to feel or think about it. So it is, you know, so so we have these two officials. They're convicted of violating a couple of federal statutes, basically prohibiting wire fraud and fraud on federally funded programs. And Justice Elena Kagan writes the opinion here unanimously reversing those convictions and finding that, yeah, so fine, there was an abuse of power. This was all improper. But that doesn't necessarily amount to a violation of the federal criminal law. And for the sort of technical reason, which is that the scheme here did not aim to obtain property or money and that it must that must be the object of the scheme in order to violate the relevant federal statute. And here the scheme was like about some political payback or something which is different from a purpose to obtain property or money.

I think that this case does sit in a line with the McDonald case out of Virginia, also involving unbelievably corrupt conduct by a sitting official, a state official as well, and also involves a unanimous reversal of that conviction, that one in a Chief Justice Roberts' opinion. I think it's actually really interesting that the Kelly opinion doesn't cite McDonnell. I think it's kind of deliberate. They're different statutes. So in theory, I suppose you don't have to talk about McDonnell. But the general principle here, which is these sort of general vaguely worded federal criminal statutes, confer too much power on federal prosecutors and that we don't necessarily want this much discretion to reside in the hands of federal prosecutors. When we're talking about this sort of complicated tangle of motivations that political actors are driven by, and so to

cavalierly allow the criminalization of conduct that we just find unseemly or improper or politically motivated would be dangerous. And on the one hand, I think that for progressives, there is, of course, something really attractive in the reasoning that we want courts to closely scrutinize the amount of discretion that these broadly worded statutes place in the hands of prosecutors. And that's, of course, in particular in the federal system where the sentences can be so savage, right, in their length. And yet it is hard to mistake the sort of asymmetry of concern that the justices seem to harbor about the defendants in cases like these who are, you know, sitting politicians,

white politicians, politicians who might look like the kinds of people that the justices come into contact with in social circles, might have actually come into contact with, in fact, probably do, and I sort of stopped to think about it it or have. And the kind of mind run of criminal defendants whose cases the justices are typically hearing right year in and year out. And so I guess I mean, I'd be curious just in general terms, like how to think about a case like this, Josie. I mean, it's you know, there's in some ways, I think, like sophisticated criminal justice reform folks like you, like, you know, would say they're sort of leveling up versus leveling down. Like any instinct is to say this is outrageous. The conduct was terrible. Like they should have the book thrown at them and like they should go to prison like everybody else.

But there also, I think, is like a sort of a leveling up response, which is that, yeah, this kind of substantive justice maybe was appropriate in a case like this and we should want more and not less of it. And so I guess like how do you navigate being pulled between those kind of two reactions to a case like this where the conduct is horrible, but the sentences are so harsh and the statutes are broad and maybe too much discretion is conferred by them? Right. I think my instinct, and it's kind of taken me a long time to get here, but my instinct is always that we should be decriminalizing and construing criminal law narrowly, right? That we should not, if, you know, if what the law says is that it has to be for money or property, it should have to be for money or property. I always

struggle with this, right? And I struggle with this in every kind of way. I struggle with it when we talk about arresting police. I struggle with it when we talk about, anytime that we talk about the disparity between what happens to less fortunate defendants, what happens to the white collar defendants, my instinct is like, you guys should have to pay the same price everybody else does. The reality is that like, making them, criminalizing people more does not actually equal the playing field, just because of the sheer disparity and who even gets indicted, whose behavior is even investigated, right? Who even is arrested? And so I don't think it's actually effective, but mostly I think that probably this is a good result that if that's what the law,

if that's what they want, if they want this to be illegal, this should be illegal in statute, but it shouldn't be construed to be broader than it is, that we should be narrowing criminal law, not expanding it. Even though that was like the most petty, worst, Bridgegate was just the worst example of like American politics that I can even, you know, think of in terms, I mean, it wasn't extreme. Wait, wait. Wait, it wasn't extremely impactful. At the time it was. It's been overtaken, obviously.

It has been overtaken. But it was, it still is in such an interesting way in that it like is just pettiness for the sake of being petty. Like it's, it just was so, it was just like, you guys are bored. You need a hobby. Like if you're like doing this in the middle of the day, it was just like, you guys are bored. You need a hobby. Like, if you're like doing this in the middle of the day, it's just like so ridiculous.

So, I mean, you know, social consequences. This is a time for social consequences, maybe not prison. Yeah, I think that's a really nice way to think about it. I was really troubled by the result, but I think it's maybe the right way to kind of reconcile these competing reactions is, yeah, probably on the statutes that were charged here, this was the right result. What I get concerned about in a case like this and McDonald and, you know, sort of you see elements of it or strains of it in Citizens United and Russo, the partisan gerrymandering cases, if the court is going to come to a place where there's a constitutional protection or privilege for any conduct, if it simply can be

explained with reference to political motivations such that that, you know, that's not the basis of the court's holding here or McDonald, but it sort of feels like it's in the ether. And if it is the case that some, you know, I don't know where, probably First Amendment grounded right to do politics would supersede any criminal statute that might otherwise criminalize particular modes of conduct if they're political in motivation, that's where I start to get really nervous. And I worry the court is sort of laying the foundations for something like that sort of rule. But as a general matter of statutory interpretation, maybe this is the right result in this case. So I think you may be convinced

me, Josie. I mean, you can see how this would just go so far that they should obviously be held responsible criminally for that. But I'm not sure that I'm convinced in this case that this is where to draw the line. So those were the criminal justice issues on the court's docket for last term. We also have some criminal justice cases we're already watching for this upcoming term that we thought we would just briefly preview since we're usually running short of time on our actual preview episodes and didn't want these cases to get lost. So I'll just rattle off some super quickly and just say the issues that they present. There's an armed career criminal case, Borden v. United States.

I am obsessed with ACCA, and this case is no exception, just because it could greatly expand the reach of this federal criminal law with very draconian penalties for kind of piddly state offenses, like bumping up against someone in the course of shoplifting and like accidentally twisting their finger in the course of trying to get their ring. And all of a sudden that subjects you to a 15 year federal mandatory minimum. The other set of cases that I'm really interested in involve remedies, possible remedies for police misconduct. So Edwards versus Fennoyoy is a follow-on case to Ramos v. Louisiana,

and it's whether people who were convicted by non-unanimous juries under the unconstitutional Louisiana or Oregon statutes can have their convictions vacated. There's a general doctrine of non-retroactivity that says new rules of criminal procedure don't apply to cases that have become final, that is, if you've already exhausted your appeals all the way up to the U.S. Supreme Court. But if the new rule is either substantive or a new watershed rule of criminal procedure, then it does apply to your case. And so the question in this case is, is this a new rule? Or if it is, is it substantive or a watershed rule of criminal procedure? I think this one will be really important.

And Leah, you raised it when we talked about Ramos the last time, just, you know, there are so many other convictions that happened under this non-unanimous jury rule. So I think this is, I think, a broader question about whether the floodgates will be opened to all of these. And I just wanted to highlight on the briefs in this case, the petitioner is being represented by Andre Belanger, who is, I think, the attorney of record from Baton Rouge that's been on this case for the long haul. But joining now at the Supreme Court level is the Northwestern University Supreme Court practicum. And I'm saying this because one of our favorite Cassandras

is an alumna of Northwestern. So Kate, your people are in here, and they are also joined by Chicago institution Sidley and Austin, who has a number of lawyers on the brief as well. So it's a full pronged effort here and lots of amicus briefs already filed, including a set of briefs from my colleagues at the Center for Race and Inequality at NYU, Vincent Sutherland and Deborah Archer, who joined with some other race centers at different law schools to take up the case for the petitioner here. Quite a team. Wow.

So I want to highlight a case that also has a really good litigation team on it, this one from Oreck. So this is a Fourth Amendment are to be taken as true. She thought were just carjacking her because they were not in uniform. They were in plain clothes. So she drove her car away from them and they opened fire into her car again 13 times, hit her twice. She was able to keep driving. So she drove herself to the hospital. The argument that the officers have made and that the lower court accepted was

that there was no seizure for purposes of the Fourth Amendment. She wasn't seized, right? The Fourth Amendment prohibits unreasonable searches and seizures. So this wasn't a constitutional seizure because she wasn't stopped, because she was able to keep driving to get herself to the hospital. Just to describe, it feels like this is a facially ridiculous finding below, and that particularly with this very good litigation team is sure to reverse, but nothing's ever that simple at the Supreme Court. But the facts here are pretty shocking. And then one other case that seems worth flagging. So this is a case that has been described as replacing a case that was supposed to be heard last term, the Malvo case involving Lee Malvo, who was the juvenile who was part of the so-called DC sniper

team. At issue in the case is Miller, in which the court held that mandatory life without the possibility of parole for juveniles violated the Eighth Amendment. And then in a follow-on case, Montgomery held that Miller applied retroactively. So Malvo ended up getting mooted. And so this case was granted in its place, although I'm sure I don't know if either of you have been following the case closely. I don't know that it's identical here. The petition asks whether the Eighth Amendment restricts life without parole to permanently incorrigible. So it requires a finding that somebody who's a juvenile when they commit their offense is permanently incorrigible. Malvo sort of had this question

about what exactly the rule of Miller that was found retroactive in Montgomery requires or holds. And I think that is basically the question here, although it's framed somewhat differently. But for folks who work on juvenile justice issues, this is just the latest in this extremely important line of cases beginning with Miller. Yeah, it's super important. And, you know, we mentioned the number of people who were convicted by non-unanimous juries in Louisiana or Oregon. There are a huge number of juveniles who were sentenced to life without parole, and states have taken different approaches to remedying these Miller violations. Some states have passed legislation making all of them eligible for parole. Other states have

chosen to conduct individualized resentencings. And, you know, this is a case that will decide whether those individual resentencings, some of is a case that will decide whether those individual resentencings, some of them complied with Miller and Montgomery, as well as what sentencing practices are constitutional going forward. I think in addition to the question presented being framed slightly differently than Malvo, the structure of the underlying state laws is a little bit different. If you remember from Malvo, the lawyer arguing the case, Danielle Spinelli, said, look, at the time this person was sentenced, Roper hadn't yet been decided. So the death penalty was still on the table. And so what the judge and jury were thinking about is whether to sentence him to the death penalty or life

without parole. And there was no statute requiring consideration of his youth. And so I think that those background features of the law were informing the court's consideration. And at the oral argument in that case, Justice Kavanaugh was asking questions like, well, if state law either permitted or required a judge to take into account youth, would that basically be sufficient? And here, the structure of state law is a little bit different. Jones is very well represented by our friends

at the MacArthur Justice Center, who we spoke to last week. But I am a little bit nervous about this case. I know I'm a broken bit nervous about this case. I know I'm a broken record, but this has been another interesting one to watch how it plays out locally. We've seen in places like Pennsylvania where I think there were 2,000 juveniles who had been sentenced to mandatory life without parole. There has been some effort, right? Some real moves towards resentencing a fair amount of them. I would argue not enough. We have seen people, and we interviewed one of them on our podcast, actually, Abdullah Latif, who have been resentenced, who have gotten kind of a second chance, and who have been found not to be

irreparably corrupt. That's what Kennedy, the language that Kennedy used in Montgomery. But then you go to places like Detroit, in Michigan especially, where a lot of DAs have asked to re-sentence every juvenile that they've ever sentenced to life without parole. And so it's just been really interesting to watch how Montgomery has played out, not just state to state, but jurisdiction to jurisdiction, right? What DAs are choosing to do with huge populations of kids or people who were kids when they committed their offense and are facing the rest of their life in prison. This is actually an issue in our local prosecutor election, Washtenaw County, where in the Democratic

primary, one candidate, Ellie Savitt, who ended up securing the nomination, promised never to seek life without parole for any juvenile. And so depending on what the court does in Joe, that might make these local prosecutor decisions and races all the more significant. Totally. I mean, Larry Krasner in Philadelphia, I mean, that was a big failure of his predecessor and a big part of his platform. So it's been interesting to watch it play out, kind of the duality of it playing out in both kind of places, both the Supreme Court and locally. It just does seem like we're having this conversation on ridiculous terms about the irreparable corruption of a child. That's not a

thing. The idea that we're even pretending that there's some predictive element that we can read into what's going to happen to a child's future just feels ridiculous on its face. So it's good to see them continue to hopefully continue to narrow this. And yet it's such a fiction. I think you're pulling punches a little bit, Josie. I mean, part of it is like when you think of the population of youth who were thinking of it, it's mostly black and brown kids. And, you know, there's lots of statistical evidence, empirical evidence that suggests that most people, when viewing children

of color, don't view them as children, think that they're older. And so again, a lot of this, I mean, if you think, take that as sort of a background assumption that, you know, there is this assumption going on that these are not children, but, you know, sort of tiny adults, then this is, I think, more obviously legible and how it functions is more obviously legible. It is the race element and this culture of poverty thing, right? And you see that in a lot of the reasoning. We saw that in a lot of what happened out of Detroit, that the DA was saying, well, these kids never got a chance and they had such horrible childhoods and they were so screwed up that now we can't let them out of prison because they were irreparably screwed. I mean, can you just, it's like, okay, well, where to start on this logic?

And so it really, I mean, in so many ways, it feels like the logic here is giving DAs the opportunity to do what they want to do anyway in some of these places, which is make the point that people can't change, even when there's absolutely no kind of evidentiary substance there. All right. So having teed up some of the criminal justice issues that are on deck for the court in October term 2020, it's now time to get into the lighter stuff, some court culture. And this court culture segment could very well be titled, Why Are Men? Question mark. You guys brought me on on the perfect day.

All right. First installment in our Why Are Men series. So the Supreme Court issued an invitation to argue last week in a case called Collins v. Mnuchin, which is about the constitutionality of the structure of the FHFA. This is a post-SALA law. So remember, the court invalidated the constitutionality of the single director structure of the Consumer Financial Protection Bureau, although left the agency intact. So this is a follow on case about another very similarly structured agency. So because the federal government has taken the position that these agencies are unconstitutional in their single director structure, court had to, as it did in SALA law, find an advocate to take the position that this structure is constitutional. So it issued an invitation, something the court does all the time, and it issued an invitation to Aaron Nielsen, who's a law professor at BYU and yet another

Kirkland attorney. I think this is the third straight white guy from Kirkland that the Supreme Court has invited to argue an unrepresented position before the court within the last year. And Aaron is a very good administrative law scholar, and I am sure will do a very good job at this argument. But it is deeply disheartening that at the close of a term in which 12 percent of arguments were by women, one by a woman of color, and the court has this opportunity to do something to somewhat rectify these numbers, right? So when we're talking about a denominator of like 50 or 60 cases, if the court's going to hand out one or two or three invitations a term, if it just tried a little bit to diversify the ranks of its invitees, it could actually really move the needle

on the numbers. And yet it seems almost deliberately unwilling to do that. So I actually wrote a law review article about this weird practice of the Supreme Court inviting someone to argue an unrepresented position a few years ago when I wrote about it in 2016, six of the 59 invitees ever were women. Only one, Maureen Mahoney, had been invited before 2009. So literally before 2009, there had only ever been one woman invited to argue a case. Three were people of color, all men. And it looked for a minute post-2016 like the court was doing a little bit better. It invited Deepak Gupta to argue a case. It invited a woman named Amy Weil to argue a case. But they seem to have now reverted to their prior practice. And they have a type when it comes to these invitations.

And it is white guys who have clerked for one of the justices and often haven't argued before. Now, Paul Clement deviated from that model. Obviously, he's argued a million times before the court. But typically, this is their type. And it's like, especially in the heels of a term or two terms in which you had these first timers who are not white guys, like Julie Rickleman, like Dale Ho, argue the hell out of their cases, like win these huge important cases. There are other lawyers they could reach out to, and they just seem not to want to do that. And so I guess I will close by saying do better. You noted that Erin Nielsen is a really great administrative law scholar from BYU and a former Kirkland attorney. He did not say, although you alluded to it, that he is also a former clerk of Justice Alito.

And so this is an opportunity for me to get back on my soapbox about how clerkships are network forming opportunities. And this was one where Justice Alito came to know Aaron Nielsen and again, felt very comfortable recommending him. Imagine what it would look like if we were able to diversify the ranks of the clerks at the Supreme Court, at the lower federal courts, so that these networks were more integrated and other lawyers who are now not familiar to judges or justices would become familiar to them in particular ways. And so again, I'm thinking back to the terrific episode that you did, Leah, with Debbie and Amir and Tiffany Wright, who highlighted all of these issues as well. So another opportunity to think about the diversity of clerkships. And that is really, honestly, Leah, that was a fantastic episode and people should listen to it if they haven't. But what I just

find so frustrating about the court's failures here is that a lot of the structural changes that need to be made in order to diversify the ranks of appellate lawyers and get more people into clerkships, those are hugely important. And some of them will take a little time. Like the court could tomorrow just like be a little bit mindful of the invitations that it is issuing. It's not, there are, even though the numbers are way too low, there are qualified women and people of color who are appellate attorneys who could easily discharge the duties. Not only that, if you wanted a law professor, there's Ann Joseph O'Connell at Stanford or Jillian Metzger at Columbia. I mean, there are really fantastic women doing administrative law work. Ann or Jillian would be fantastic.

And I have no idea if either of them would even want to do one of these arguments. But they could do a fantastic job. And it is just conspicuous that the court seems to have no interest in reaching out and tapping people like them. So second incidence of why are men is some changes in the personnel in the Solicitor General's office. So the SG's office has added another career deputy position. And in that position is another white man rounding out the office to have five deputies, four career deputies, all white men. And the newest addition

is Curtis Gannon, who was formerly at the SG's office and is coming from the Office of Legal Counsel. Marsha Coyle reported that the increase in the number of deputies might actually be because of the increasing number of emergency applications that the federal government has been making to the Supreme Court. So asking them to grant stays of injunctions against the Trump administration's policies. Some other great things that DOJ has been doing that they might need the added resources for were, one, asking the Supreme Court to allow the president to block people on Twitter. So the Department of Justice filed a cert petition in the Court of Appeals case that

had said the president can't block people on Twitter. And even though the issue is entirely splitless and definitely beneath the dignity of the court, the DOJ decided to marshal its resources and time to ask the court to hear it. And the DOJ also just filed a cert petition in the Boston Marathon bombing case. In that case, the Court of Appeals had vacated the death sentence of the defendant on the ground that the prosecutors had manipulated jury selection in order to wrongfully exclude people from the jury pool, and DOJ filed a surpetition in that case as well. Nothing to see here. So that's probably all we have time for.

Thank you so much, Josie. We hope you will come on again soon and help us cover this upcoming term and terms thereafter. Thank you to Mellie Rowell, our producer. Thank you to Eddie Cooper, who makes our music, and you can support the show at glow.fm forward slash strict scrutiny.