Strict Scrutiny - Josh Hawley's Tears

Episode Date: June 19, 2020

Leah, Melissa, and Kate are joined by Luis Cortes-Romero to recap the DACA-licious DACA opinion that dropped today! Follow us on Instagram, Twitter, Threads, and Bluesky

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

I'm Leah Littman. And we are joined today by a very special guest who's going to help us break down the court's latest opinion in the DACA case. So please give a warm Strict Scrutiny welcome to Luis Cortez. Welcome, Luis. Hi, everybody. Thank you so much for having me. I'm so excited to be here. We could not imagine doing thisez. Welcome, Luis. Hi, everybody. Thank you so much for having me. I'm so excited to be here. We could not imagine doing this episode without you, Luis.

So do we want to start with what our mornings were like? Because I feel like that might give our listeners some sense about the monumental nature of this decision. So can I just say, for those of us on the West Coast, these mornings are grueling, right? So you wake up like, you know, 6.15 for orders because you want to be there at 6.30 for us. And like, you know, you're in the dark fumbling around, you're trying to read the opinions when they come down at seven and you're pressing refresh over and over again to see if there's another opinion. And then the day just starts. And then, you know, if you have kids or whatnot, that day is also starting at the same time.

And kids don't care about the Supreme Court. Shocker. They do not give a fuck about the court. Yeah. So it's been a whirlwind this morning, I think. I would agree. I'm also in the West Coast. And those early mornings are a bit rough when you have a shot of adrenaline trying to figure out what's going to happen that

day. And then you just go about your day right after at about 730. And Luis, you obviously are counsel for one of the cases that was decided today. And so you've been in this kind of standby mode for a while, I imagine. Yeah. I mean, at least since May, we've been looking at when the next decision days are going to be, waking up every morning on decision day, you know, having hot palpitations. And then, you know, then I'll continue by my day in the morning. And it's hard to plan around, too, because, you know, you figure if we do have a decision that day, then it's going to be an all hands on deck type of situation, depending on what happens. So it's hard to plan. So it's yeah, we it's a huge sigh of relief even just to have the decision out there. Well, so this morning, the Supreme Court, you know, I was getting ready for opinions.

I am refreshing the opinions page, which is how I've started watching for the court's opinions. And I see our case caption, DHS versus University of California Regents. And I, my heart just goes up to my throat. I cannot bring myself to click on the decision because after argument, or at least during argument, it's not like I feel like many people walked away from that argument thinking the respondents, you know, here the DACA recipients are going to win, right? It did not seem like there were clearly five votes for respondent. So pause, open the decision. And then immediately

the next tweet that comes out is, fuck, right? The DACA decision is unlawful. It's arbitrary and capricious. I just, I could not believe it. And I just I sat there and I, you know, I read quickly. I couldn't even start reading. I was so excited. And we should remind listeners who don't know that Leah also is one of the lawyers who worked on the case. So it's not only like an avid watcher and commentator, but like very personally, intellectually and otherwise invested in the case here. So yeah, you guys won. Like a lot of people won, right? But Louise and Leah, among others, won. I don't want to embarrass him. But before we actually dive into the decision, I just do want to take a moment to thank Louise and just like

ask our listeners and invite our listeners to think about like the role he played in this case. He sat at counsel's table. He invited the world and the justices and all of the lawyers to look at him and see, I am a DACA recipient. I am standing up and I am identifying myself. If you're going to allow the administration to do this, you need to recognize what this has done for my life and what I have used DACA to do. Like I am sitting here in the Supreme Court litigating on behalf of DACA recipients. And this is the program you are inviting and allowing the administration to end. And like the courage that that took and his presence in the case just cannot be overstated. And I am just so proud to have had the chance to work with you and to have you here. So

I will stop talking so we can talk more. I really appreciate the kind words, Leah. And, you know, when I was reading through the decision this morning, it was, I thought I had misread it. I was like, there's so many technical pitfalls in the case that there's a lot of ways that we could have lost. And I honestly was expecting like maybe a sympathetic opinion, but saying, I'm sorry, and we're going to lose. And, and so that's what I was expecting. And so when I started to realize, like, I think we won, I wasn't sure about myself. So the first person I called was Mark Rosenbaum and Mark. So, you know, even before DACA was rescinded in September of 2017, Danny Ramirez, the first DACA recipient who was detained under this in February 2017, me, Mark Rosenbaum from Public Counsel, Leah, and Ethan from Gibson Dunn all got together.

And it's when we first started to really explore the legal contours of DACA. Is it reviewable? What protections does it have? What interest does it have? That ultimately gave us the blueprint to challenge it at large. And so, you know, I remember when it was just us on a phone call trying to get the papers together, even to try to figure out if we were right. And so I called Mark because I wasn't sure. I didn't know who else to call. And even before he said

hi or anything, he said, we won. We won. And I think that's the only thing he really could say. He goes, I can't believe it. We won. And when I looped in Ethan, Ethan was crying. And I think it was a very emotional moment because we, I think, you know, started protecting DACA before it was attacked in mass. And we remember thinking, I remember back in February 2017, where we weren't sure about the legal doctrine and we were in uncharted waters. And, and we, I remember that very clearly having the conversation, like we could very well lose because we don't know what kind of this unexplored legal uncharted waters. And so it was a very emotional day, I think, because we accomplished what we

set out to do, which was to protect DACA, not just for Daniel, but for hundreds of thousands of other people. And it feels good to have accomplished that. Then my immediate other phone call was with the plaintiffs, the six DACA recipients who various lives were put out there. And I texted them and I said, let's get on a quick group call just to check in before everything kind of, you know, starts going crazy. And we remembered about the conversation we had when I asked them, and I remember what I asked of them. I asked them in September of 2017, if they would put their lives on the spot and take on the biggest government in the world, the U.S. government, to protect DACA and to protect the rights of other immigrants. And some of them said, let me call you back later. I got to think about this for a second.

And so when they all agreed, we remember having this conversation that we don't know how long it's going to take. It's going to be very tough. We may not win, but we should try. And we started that journey together three years ago. And again, to reach that, to accomplish what we set out to do was just such a profound moment and such a rewarding moment. And, you know, we I am so grateful that, you know, we we had so many people that cared about this issue early on, like Leah. And we had, you know, Dean Erwin Chemerinsky, Professor Tribe, who also kind of got in there and pretty early on.

And I think that was so important to think about what the legal protections of DACA looked like, even on Daniel's case, because that played a huge role as to what it was going to look like later in the federal courts. You had some prominent conservatives join you as well. Like Ted Olson was also at counsel. Yeah. And so, you know, Ted Olson, he helped us out a lot with the Supreme Court argument. He's the one who ultimately did the presentation for the case. And I think that did a lot to have someone of his tenor join the chorus of voices to advocate for DACA, not just because it's the right thing to do, but from a legal perspective. And I would like to think that that did a lot to sway the justices of how sound our arguments were and that they were rooted in doctrine. And so it took really the people who cared from different intersections to really make this

happen. So should we talk a little bit about the doctrine sort of as it's laid out in the chief justice's opinion? And we should say this is a 5-4 opinion, which the chief justice writes for himself and the four more liberal justices. I think at least you're right that a lot of dimensions of the case are uncharted. But in some ways, the case sort of, the opinion holds itself out as grounded in very familiar administrative law principles of reasoned decision making and the giving of reasons, you know. And sometimes there are rules in the law that don't make a lot of intuitive sense. And actually, and that's true, especially, I would say, about administrative law. But this is a general principle of administrative law that I think is intuitively obvious and

correct, which is that when government does things, particularly things that affect people's lives, it has to have reasons for doing those things. And it has to give the reasons. And that's so that courts can evaluate the reasons and to see if they comply with other kinds of legal restraints and legal norms and values. And also the public can scrutinize what government is doing. And in a very simple way, that's what the chief justice for the majority found that the Department of Homeland Security just totally failed to do here. Undertake a reasoned decision-making process and then give

sufficient reasons to explain what it did when it decided to rescind the DACA program. So I think it's right. There's some new terrain broken in this opinion, but it's really grounded in familiar concepts. Well, it's also a reprise of everything we saw in the census case last year, including the lineup. I mean, so it's the same kind of logic about the APA, about reasoned decision-making, providing reasons. But we've seen this before. So I mean, to the extent that you can read these tea leaves to discern trends on the court, at least one trend that you might

come out with is that the chief justice, at least on this sort of very narrow issue of administrative lawmaking, seems to sort of hew to this camp that you've got to just follow the rules. Like there are rules and you've got to follow them. Yeah, it's like an interesting, you know, tandem combination. I know, Kate, that you have written about and spoken about the trilogy from the entry ban cases to the census litigation to now the DACA case, where it's this combination of is the administration just bad at administrative law? Like maybe they just can't do the APA case where it's this combination of is the administration just bad at administrative

law like maybe they just can't do the APA right that that might be part of it but I think another part of it is right they're also probably doing and are doing like a lot of really terrible and racist things and don't want to admit that's what they're doing. And so then that forces them into this position of having to kind of lie and obscure. And that just does not comport with or do well in administrative law. And so, you know, from my mind, I don't know how much of it is incompetence, although I agree the Duke memo was just kind of odd, you know, starting point. Yeah, no, I think that's such a good point. So part of it is, you know, starting point. Yeah, no, I think that's such a good point. So part of it is, you know, you look at the administration's track record with administrative law cases, and it is abysmal, right? So the Institute for Policy Integrity

counts something like six wins and 79 losses in, you know, traditional administrative law cases, and the executive branch wins more than half of ad law cases under ordinary circumstances, way north of, you know, three quarters much of the time. So this is sort of a kind of anomalous. And so I think you're right, Leah. One possible explanation is they're just bad at it. They're bad at dotting I's and crossing T's. They are sloppy and rushed and take shortcuts.

And that explains their losses. And then I think another kind of deeper explanation is that the actual things driving them are not legally permissible reasons, right? So whether they're about partisan advantage or racial animus, that's actually none of those. Partisan advantage under some circumstances might be. Certainly racial animus isn't. But under a lot of circumstances, partisan goals and desires aren't permissible reasons to act either. And given that those are the genuine reasons motivating action, these kind of papered over explanations that the administration is forced to supply are just going to fall, whether that's because the court decides to say, look, this is obviously pretextual or to say, look, you know, you did this sort of incomplete consideration of the things you say you were considering. That's really about not just incompetence, but something deeper and, you know, actually much more troubling. Can we talk about this whole question of text versus pretext? There was only one justice in the suite of opinions who took seriously the idea that

there was an equal protection issue here. And that was Justice Sotomayor, who argued, as she did in her dissent from Trump versus Hawaii, that you could not distinguish the administration's campaign speeches about, quote unquote, Mexicans and undocumented persons from their later policy making changes. She's like, you know, there is a clear line between the two and it presents at least the beginnings as a procedural matter for the plaintiffs to be able on remand to go back and develop the case of an equal protection violation. No one else, in the majority, the chief justice did not agree with that, and none of the dissenting justices agreed either, surprisingly. And Justice Sotomayor is the only one to write about this particularly. What do you make of that? And sort of, again, if text versus pretext is important, if you think about this

particular departure for the chief justice from the majority, and then think about his joining the dissenters and Ramos, like, you know, even bringing up the question of race is uncivil. I think that's another trend line that can be discerned here too. Like, I don't even want to talk about it. And that could go back even to 2007 and parents involved where he just does not want to talk about race or the possibility of racial animus. So the equal protection argument, I think, is a little complicated here because as I understand the litigation history and, you know, the two of you who've worked on the case obviously should correct me if I'm wrong, but by the time this case was before the Supreme Court, none of the DACA recipients or municipalities or other, you know, respondents in the case, obviously, should correct me if I'm wrong. But by the time this case was before the Supreme Court, none of the DACA recipients or municipalities or other respondents in the case

were focused at all on the equal protection argument. The real action was in the Administrative Procedure Act. And it's true, the Ninth Circuit did find that a claim had been made that there was a violation of the Equal Protection Clause, but it wasn't at all front and center in the briefing of the case. And what I was just struck by was how gratuitous it seemed for the Chief Justice to have written even a short portion of his opinion suggesting there was no equal protection violation when, you know, there was no real development of that question below. It wasn't the focus of the briefing or the argument. And it was totally unnecessary because the government's action fell under APA review. And so, you know, a basic principle of judicial

modesty is that you don't opine on the Constitution when there's no need to do that. And so to my mind, I was just like kind of offended, like procedurally by the chief justice having gone there at all. And then I guess by the four more liberal justices not having, even if they wanted to supply, you know, kind of like an attaboy unified front to the chief justice on the EPA claim, somebody couldn't have written something separate that just said, you know, we don't have to resolve the protection claim here, even if they didn't want to join Sotomayor. So that I just found like really perplexing. You know, it's not front and center in the briefing, but, you know, consider who the court is, right? Like part of the reason why the administrative law claim is front and center of the briefing is because the administrative law

doctrine or administrative law claims rather are grounded not just in existing doctrine, but also do and should have resonated, I think, with all of the conservative justice skepticism of administrative and executive decision making that is unconstrained, right? Like, they are nominally concerned about excessive executive administrative power, and the way they think that that power should be constrained is through judicial review and forcing agencies to go through lawful processes and dotting their I's and crossing their T's, which no one could seriously think, right, the executive branch did here, right? And so it's partially a product of and just reflective of who's on the court and what their worldviews are that, you know, that was the

front and center claim. It is a little sad to me that the equal protection analysis was 8-1. I think it is odd to say that the equal protection claim here is not even plausible, which is, of course, the stage of litigation where we are now, particularly for the reasons Justice Sotomayor gave. But it's an interesting dichotomy where here you have these administrative law doctrines that are nominally doing some work to enforce constitutional guarantees that I guess the court has just made largely unenforceable. Right. Since it is never willing to say that a government policy was actually based on racial animus. And instead, all it is willing to do is say, just do a better job concealing your animus, I guess. Right. Like that's that's not a perfect solution.

And yet, this is, again, you know, where we are. It's the same message that the court gave in the census case, right? Just like, do a little better lying, please. I think that's right. And one of the things that happened during the course of the DACA litigation was that while the case was in the Ninth Circuit, the Hawaii versus Trump case came out that also had some very similar parallel lines. And I think that was very illuminating as to how the court was going to approach a kind of the racial animus based question in the immigration context. And given the broad authority that the executive branch does have in immigration in particular. And so, you know, the contours of the DACA case within the Equal Protection Clause changed a little bit in light of the Hawaii case, too.

But ultimately, I think Leah is right on that the Administrative Procedure Act doctrine is one that, you know, I think that everybody could agree on. If government is going to do something, they got to do it right. Yeah. And like that is front and center in the chief's opinion, right? Like he quotes this Oliver Holmes notion that, you know, men must turn square corners when they deal with the government. And here he says, you know, the government just utterly failed to do that. And, you know, again, to me, it is somewhat embarrassing that that principle, which justices like Justice Gorsuch and Kavanaugh purport to hold dear, like they couldn't, you know, hold true to that principle in this case. Instead, you have Justice Kavanaugh

writing this dissent, you know, basically making excuse after excuse for the government being like, okay, well, sure, they didn't do it in the Duke memo. So I'll consider the Nielsen memo. And like, yeah, right, that that's a subsequent agency adjudicator. But like, well, I only require, you know, agencies to like offer their real reasons and adjudications, not rulemakings. And so it's just kind of weird to watch and see. It occurs to me it might be useful to spend just a minute talking about the specific failures that the majority identified in terms of the kind of requirement of reason decision makings. And they're fairly straightforward. I mean, there's a couple of hurdles to get over. Is this kind of decision reviewable at all? The court says yes. There's a discussion of sort of

a few different dimensions of the reviewability issue. But when the court arrives at this discussion of whether this was arbitrary and capricious, you know, really what the court says, and it cites this 1980s era Supreme Court case, State Farm has to do with vehicle safety, seatbelts, and airbags, and just basically says, you know, agencies have to consider all of the kind of important dimensions of a problem. And here, DHS just didn't do that, right? Both Attorney General and DHS basically looked at the kind of benefits that attach to receiving DACA status without asking at all about this kind of central question, which is the forbearance, DHS's forbearance from pursuing deportation. And that's actually what DACA is really about.

Obviously, these ancillary benefits are hugely significant to people's lives. But the kind of antecedent sort of thing that DACA does is give people relief, temporary relief from deportation. And DHS just don't consider that at all. So I think that's kind of fatal flaw one that the court identifies and fatal flaw two. Well, so before we get to fatal flaw number two, Kate, it's interesting that you say that, because if you remember back from oral argument, remember that the chief justice asked a question that said, well, isn't the entire gist of DACA, isn't what this really about, the conferral of these benefits like work authorization, not deportation, right? Like, that was his understanding of the policy that he seemed to convey at argument. And it was only after argument when people, you know, kind of like called out that question as reflecting perhaps a overly optimistic his characterization. He's like, look at the name of the thing, deferred action. That's the whole point.

But you're right. It took him some, he had a journey to get there himself. And how much of that journey was informed by the last three months? I remember there was the additional briefing on the whole question of DACA recipients being frontline workers. I mean, I think this is perhaps an element of the realpolitik of the moment helping to shape decision making. Yeah, I think that could well have had something to do with it in some ways that I think that speaks both to kind of the forbearance issue and then fatal flaw number two that the opinion identifies, which is just the total failure to consider

reliance. And well, that was my point. I was I'm already on part two. Totally. Sorry. You got your way ahead of me. I'm sorry. So the rest of us can get to where Melissa is. Yes, it is. So that's, you know, and in some ways, it kind of returns to what we were talking about at the beginning of this episode, which is like, one thing that I really appreciated about the opinion. It's like, you know, it's it's a Robert's opinion. It's not like a Kennedy opinion. It's not like dripping with sort of, you know, morality or dignity or emotion, but it at least acknowledges like human stakes and toll in a way that I appreciated. It sort of says, you know, and it does it in the context of this failure to consider those dimensions of the decision that DHS had made

and, you know, and also said, look, DHS could conceivably have considered reliance and decided to move forward anyway, but it could not skip that hugely important stage in the decision-making process in which it asked about impact on individuals, families, citizen kids, schools, workforces, including, as Melissa mentioned, you know, the 20-some-thousand healthcare workers who are DACA recipients, right, who are fighting this pandemic right now. And, you know, and again, the chief just seemed to evidence an understanding of human stakes here that I appreciate and I don't always see in a Roberts opinion. Yeah, I wonder too how much, I remember during the oral argument, Chief Justice Roberts asked General Noel Francisco about what will happen after the decision of DACA. And General

Francisco at that time said, you know, that there would be low priority. Generally, nothing will happen. He's just Noel now. Noel had said that that's, you know, essentially guaranteed the court that that wasn't going to happen. And since then, DHS has changed its tune and said, no, we plan to put removal orders in place and enforce people who have removal orders already. And of course, this is also in the backdrop where the Department of Justice and the Department of Homeland Security had just proposed regulations in order to really streamline the deportation process that happened last Friday. So we're starting to see kind of this all like this structural change in order to streamline some of the deportations they promised now to do. The subsequent brief really also outlines that not just in the health worker, healthcare workers part, but also that there's this change in attitude about what's going to happen in enforcement.

So I wonder how much that had to do with the way that the decision panned out, because it was at least a part of the conversation at the oral argument. I wonder if it had any bearing on the timing of the decision in the same way that the Title VII cases followed on the announcement of the rule change in the ACA. And then this also follows with Friday's announcement of the change in the deportation process. Oh, that's interesting. I hadn't even thought about that. He's just like a master DJ. He's like Chief Justice Roberts is the Diplo of the court deciding when to drop great new tracks. DJ CJR. DJ Chiefy. I'll continue thinking of names.

You know, I think we talk about the Kavanaugh dissent really quick. Oh, yeah. Well, first, you know, Alito managed to contain his rage into two pages, right? This is perhaps why the website didn't crash this morning. So thank you, Sam. So I thought the Kavanaugh dissent was really, really interesting. One, just in sort of the way the decision to rescind DACA is framed. And so this is on page two of his opinion. He talks about the Obama administration unilaterally instituted the program. And then in the next paragraph,

he says, and since 2017, the Trump administration has sought to rescind DACA based on its different and narrower understanding of the executive's prosecutorial discretion under Article 2. I have never heard anyone characterize this administration's understanding of executive power as narrow and cabin. But like, this is the alternate universe, right, that he is living in, and that the defense of this program existed in. The idea that it was the Obama administration that was this all too powerful, evil behemoth that was going to crush all of our liberty. And the Trump administration was just restoring.

I think you could have a genuine conversation about whether an executive order like DACA is a way to sort of circumvent a lawmaking process that is like sadly sclerotic and broken and will not yield a usable result because of its brokenness. But to call the administration after you just heard these cases about tax returns and financial disclosures to talk about their understanding of executive power as narrow and limited. It's just like, how sway Brett Kavanaugh? Like what? This is crazy. Well, it's not even narrow and limited in this case, right? They are arguing that the recission is unreviewable. They are arguing that they don't have to dot their I's and cross their T's and can

just cut corners and do whatever it is they like and do it sloppily and have courts uphold it. So even on this specific case, it is weird to describe it as a narrow view of executive power. So that to me was just, I thought, really an interesting kind of framing of the question. Yeah. And the Thomas dissent, I think, was expected. Like, I mean, sort of exactly what you would expect. He also just like, you know, takes a very strong position that, you know, DACA itself was unlawful, which is like not actually a question before the court. I mean, you know, the administration's belief that it was is in the case, but not the standalone question. But yeah, he's going to Thomas. Yeah. And he was joined by Alito and Gorsuch there. There is actually still pending that case in Texas. You know, the Texas file challenging the legality of DACA that the district judge stayed pending a decision in this case. And they're going to use this dissent.

Oh, yeah, you know, a dissent that later gets farmed out and used in the lower courts, again, to sort of widen the Overton window of how we talk about things. Any other thoughts about this opinion or just what it might say about the term writ large or the court? This week is surprising. No, right? So Title VII and then DACA, does that mean that I'm going to be in the fetal position next week with June Medical? I'm honestly at a loss for words. And I'm rarely at a loss for words. This is what happens when I am this happy. Can't confirm. Can't confirm. Can't confirm.

It's, you know, imagine what living in a world like this would be like, right, where you can regularly expect these kinds of decisions from courts rather than just being completely floored by. I'm waiting for the other shoe to drop. Again, I feel like I'm the Debbie Downer of this whole enterprise. I'm like, the center cannot hold. You know, I've seen some commentators the last couple of days talking about like, there's this, I think, quite mistaken impression that there is actual horse trading that goes on at the Supreme Court, where like, Kagan will say to Gorsuch, like, you join us in sexual orientation discrimination, and I'll join you on abortion. And like, they never, ever transact business, I don't think in quite such crass terms. You know, in more subtle ways, they're like ways to accrue institutional capital by, you know, casting a crossover vote, obviously, but not. They don't trade votes. But I do think karmically it feels as though the liberals can't possibly win in June Medical after these two victories. But I came away thinking that Roberts, maybe Gorsuch,

obviously Gorsuch in Title VII, but certainly Roberts in both cases, seems to kind of dwell in kind of a reality-based world in a way that made me feel pretty confident that there's no way that Trump wins big in the tax financial records cases, particularly the New York case, in which his arguments are horrible. But I think actually in the congressional cases, you know, at least there's some chance that Roberts votes with the committees. So that was kind of my tea leaf reading as to those cases. But on abortion, I didn't see any direct through line between these two, except for karmically, it seems as though abortion has to come down the other way.

What about the electoral politics? I mean, because basically the court has been the bad guy and says, you know, the way you did this was wrong. And it leaves the Trump administration, or at least Trump, the campaign, enough room to say, well, DACA didn't get struck down. We never took it out. And maybe that plays well with some middle of the road voters who would be more concerned if the administration had sort of spearheaded the attempt to get rid of DACA and had been successful.

I think it's right that the decision in this case and Title VII, right, allowed the Trump administration to not go into the election having to defend these decisions, but more importantly, took the court out of those unpopular decisions, right? So people, particularly the left, weren't bashing and running against the court, and the court was preserving its own institutional reputation and perhaps the number of justices on the court by staying out of the fray in those respects. I don't know that and I don't think that would be like an explicitly conscious reason for a justice to vote their way. And in fact, like the president immediately tweeted out that this horrible political decision, this is why you need to vote Trump in 2020 to get me more conservative justices, i.e. to like allow me to

like strip non-discrimination protections and allow me to deport DACA recipients. But, you know, it just feels like having sort of touted the accomplishments of Gorsuch and Kavanaugh and not being able to sort of have the goods to show for it in terms of outcomes, at least so far in the term. I don't see how that really helps Trump electorally. But back to the term, I'm curious, Leah, did you, because Melissa and I both weighed in, do you have thoughts on sort of what this, if anything, signifies about what we're likely to get in the remaining big ones this term? So, you know, after argument, I thought Trump was going to lose the New York subpoena case. I think that's right. I still think that the government's position or some slight version of it is going to prevail in the congressional subpoena case, even though I agree the arguments there are bad.

I am, I guess, less pessimistic about June medical only because this morning I was looking again at the assignment opinion breakdowns. There are four justices who haven't written for four opinions in February. Those four justices are the chief Alito, Breyer and Sotomayor. And the four February opinions are a sale of law. The CFPB. The conservatives are winning that. Right. That's got to be the chief or Alito. Right. Because that's not if they win it, they win it narrowly. But I'm right. But like five, four and narrowing. Yeah. No, no. But I mean, the reason the reasoning will be. Oh, sure. Yeah. But like a lot of precedent. But the CFPB itself, right. That structure. OK. Maybe narrowly is invalidated. Yeah, but I guess like I don't see the more progressive justices like joining on that opinion. And then you have the Rice again, the constitutionality of expedited removals. That decision also looked like it was going to be 5-4 after argument with the conservatives winning. So then could those be the chief and Alito assignments from February? And then that leaves June Medical and Lou to be written by Breyer or

Sotomayor. I don't know. I mean, Neil Gorsuch got two opinion assignments in October and the chief in RBG got zero, but that's atypical. So I don't know. That's one of the reasons why I am perhaps less pessimistic than... I could see Breyer with Sella, though. Really? Yeah. I don't know how that case comes out, honestly. Paul Clement was so good. He was so good. But Paul Clement was arguing for the constitutionality of the, no, I just. He was defending, right, the structure of the board. So, but, you know. I don't think he's going to win. Okay. Well, we will. It's good. It's good that we disagree on something. I hope, I hope, I hope you're right.

I'm glad that Leah is the optimist for this episode. I'm so glad. Yeah, I'm actually, I mean, I just think there's like, given all of the talk in the conservative circles about, you know, this disappointing court, you know, the disappointment of Neil Gorsuch, do you think that they will serve up an abortion decision as red meat for the base? Because I think that's something that will really speak to that constituency. That's my worry. Yeah, they got to give Josh Haw holly something so he does no longer declare as the end of the conservative legal movement am i allowed to say on the podcast that i really wanted to make a cup that said josh holly's tears on it um and sell it with our logo i became concerned about using his name for commercial gain.

But did you like how we did it? We never actually objected formally. We just sort of like, it was like a very classic parent move. Like, do you think that's a good idea for you, Leah? Is that how you want to use your platform? Like, is that what you want to use? So we know that we'll have decisions Monday of next week, probably another day, Wednesday or Thursday. And I think there's no way they get rid of 15 additional opinions in like two days next week.

So it seems pretty likely to me we'll be into the next week and, you know, maybe July, maybe into a little bit of July. But it's going to be a busy next two weeks. Yes, it is. Louise, congratulations. Yay! Yay! A dacalicious day for a dacalicious episode

so thank you to Louise for joining us especially on a very busy day thank you to our producer Melody Raul for getting this episode out and many others this week as well thank you to Eddie Cooper for making our music.

And thank you to you all for listening to us. If you want to support the show, you can do so on our website, strictscrutinypodcast.com by glowing up with some strict scrutiny swag that doesn't mention

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