Strict Scrutiny - Judicial Joyriding

Episode Date: September 26, 2022

For the University of Michigan's Homecoming weekend, we held a special live recording for our season finale. Michelle Adams joins Kate and Leah to wrap up the justices' summer shenanigans and provide a look forward at the collegiate affirmative action cases coming before the Supreme Court this term. Plus, Sommer Foster, co-Executive Director at Michigan Voices, joins to talk to us about Reproductive Freedom For All, the ballot initiative campaign to protect reproductive freedom in Michigan. 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. Hey everyone, it's Leah. So as part of the University of Michigan's Homecoming Festivities, we got to record a live show at the law school. It was the first live show we have done since February of 2020. And while we had a great conversation that we really wanted you to be

able to hear, just about everything that could go wrong audio-wise went wrong. So microphones got lost in the mail. We had technical difficulties in the lecture hall. So this episode does not have the best audio quality. You're going to hear doors shutting, key rings jingling, and a fraternity party blasting house music and literally demolishing a boat, yes, I said a boat, with a sledgehammer. But here's the thing. You can just pretend like you were there with us. It's authentic. It's cozy. The content is still 10 out of 10, or at least that's what Melody says to make us feel better. So with that preamble and caveat, on with the show and go blue. And our regular audio quality will be back next week. Welcome to a very special live show of Strict

Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I guess this is a real live show. We need to do the air quotes as we have been doing for the last few years, like live over Zoom. We are live, like really live, at the University of Michigan Law School for our first real live show since the start of the pandemic. This was also the location of our first ever real live show back when we were young and hopeful. Today, we are your old and jaded hosts. I'm Leah Whitman. I'm Kate Shaw. We are delighted to be joined today by our fantastic guest host, Michelle Adams,

my former and wonderful former colleague and co-director at Cardozo Law School, who is now the Henry M. Butzel Professor of Law at the University of Michigan Law School. And Michelle is one of the Stupendous New Faculty members here at Michigan. I am and we are so thrilled to have her here. So welcome to the podcast, Michelle. Thank you. Michelle works on issues of race discrimination, school desegregation, and affirmative action, and is working on a historically focused book about those issues right here in Michigan.

So stay tuned for when she will be back on the show. She hasn't actually agreed to do that, but I'm pinning her down now. Will you come back on the show when the book is out to talk about it? I think I will. Okay, so stay tuned for that. Melissa, we should say, is so sorry not to be here.

She had a family obligation, and it does not have to do with the British monarchy. Or does it? We'll find out when she's back with us next week. We are also delighted to be joined a little bit later in the show by Summer Foster, the co-executive director at Michigan Voices, who will be talking with us about the Reproductive Freedom for All ballot initiative here in Michigan. So Summer will join us in a bit for a segment on that topic. So we're in a bit of kind of the calm before the storm period on the

Supreme Court calendar. The court's arguments don't start until October 3rd. The justices don't meet for their long conference, which is when they gather to discuss all the cert petitions that have piled up over the summer until just before October 3rd. The justices, as far as I know, are still geographically scattered, which I'm guessing suits them just fine after the term they all had together. But even though the court isn't actively hearing cases yet, there's still a lot to talk about. And so today we're going to cover some encore appearances on the Troll World Tour. Then the Reproductive Freedom for All ballot initiative here in Michigan. We'll sprinkle in a few court-adjacent news topics, and then we'll get Michelle's thoughts on the upcoming term. So let's dive

right in. Okay, so first up, the Patrol World Tour. Some of you may remember the world tour that was happening right around this time last year. So it was right around this time one year ago that Justice Barrett appeared at the Mitch McConnell Center, that's the Senator Mitch McConnell Center, during's the Senator Mitch McConnell Center, during which appearance she gave a speech about how the Supreme Court is definitely not political, how the justices are not a bunch of farts and hacks, those are her words, not mine, and this was while standing next to a smiling Mitch McConnell, who, you know, had held open the vacancy left by Justice Scalia's death for nearly the entire last year of the Obama presidency, claiming the existence of a rule that barred confirmations during an election year, and then rammed through

Barrett's own confirmation eight days before the next presidential election. No, we are not over this, right? We are not over this. We are still talking about this. We're going to keep talking about this, especially after the term that just concluded. Justice Thomas was also taking part of this. He was also giving speeches about what he felt was a concerning lack of trust in our institutions and public racism of them. This is around the same time period Justice Thomas

was voting on the presidential records case, including the one about whether President Trump was entitled to block the release of documents from the National Archives of documents that were related to the January 6th attempted insurrection, cases in which it turns out that his wife might have had an interest because she was one of the people communicating with state legislators urging them to overturn people's votes and throw up the election. In more recent Ginny Thomas news, our girl just announced that the January 6th committee and Ginny came to an agreement to interview Ginny. That's right, the committee investigating the attempted insurrection and who at the Capitol needs to talk to the spouse of a current Supreme Court justice. This is a sign of a democracy that is working very well.

We are going to wait, however, to talk more about Ginny Thomas and specifically the new Ginny Thomas drink for the fall when Melissa is back with us. So back to the troll world tour for now. Our favorite justice, that would be Samuel Alito, was in the mix too. Right around this time last year is when he gave the bitter, angry speech at Notre Dame Law School in which he accused Adam Serwer, the journalist at The Atlantic, of lying about how the Supreme Court had nullified Roe v. Wade. Adam wrote that piece after the court

had allowed Texas to enforce SB8, the law that effectively prohibited people from getting abortions more than six weeks after the person's last period. And then for reasons that still escape me, Steve Breyer was like, you know what? Yeah, the court is not political. We are definitely not a bunch of partisan hacks. And I wrote a book about it. And now when the court effectively nullified Roe versus Wade would be a great time for me to go on tour about that book. And so that's why or what he did. The only good thing about that episode is that it occasioned Leah's epic review of Justice Breyer's book in the Michigan Law Review, which some of you may have worked on. You should all read it if you haven't. But that's all last year's tour. And so now that we've refreshed your

collection, let's turn to the latest episodes. So last year's tour featured Justices Barrett, Thomas, Alito, Breyer, and it seems like somebody got left out, and so they decided to up and join the band. And welcome to the Troll World Tour, John Roberts. The Chief Justice recently spoke at an adventure bar conference in Colorado Springs, Colorado, with lawyers and judges in the audience. During the event, during his appearance, he said, quote, I don't understand the connection between the opinions people disagree with and legitimacy of the Supreme Court. Also along these lines, he said, quote, simply because people disagree with an opinion,

it's not a basis for questioning legitimacy of the court. And, quote, you don't want public opinion to be the guide of what the appropriate decision is. He also added, quote, you don't want the political branches telling you what the law is. Justice Gorsuch also appeared earlier in the week at the same conference. And there he spoke about the leak of the draft opinion in the Dollops v. Jackson Women's Health Organization, calling it the leak that is, an improper attempt to influence judicial decision-making and a threat. He also broke some news, which is that there is a committee that is apparently still overseeing the investigation into the source of the leak, and that the committee is maybe going to produce

some sort of report. So we have questions, right? Who is on this committee? Are there justices, right? Like, who is on this committee? Are there justices on this committee? Is Alito on this committee? Are we going to see some version of the public report? You know, we thought that the marshal of the court was the person conducting the investigation,

but evidently there is a team hard at work. So stay tuned. So we're going to focus, at least for this show, on the chief and ask sort of why he's doing this. Why is he making the kinds of comments that he is and filling the need to go out and give speeches? And you all have talked in this show about how the public approval of the court has plummeted in recent years, particularly after this last term, and those ratings are still underwater, more underwater since people

started measuring the public approval of the court. A national poll conducted in July by Marquette University Law School found that public approval of the court was down 38% compared to about 60% a year earlier. In July 2022,

Gallup found that 55% of U.S. adults disapprove of the way the Supreme Court is handling its job. Only 43% of U.S. adults approve of the Supreme Court's job performance. Compare that to July 2020, when Gallup found that 58% of U.S.

adults approve of the Supreme Court. And a poll released just this week found that a majority of Americans supported expanding the Supreme Court. Okay, so the approval numbers are just like falling off a cliff, and we will see, I think, how that trend develops at this term. But the Marquette poll that Michelle just mentioned also had some pretty interesting information about public knowledge about and opinions about individual Supreme Court justices.

So Leah, do you want to hit some highlights from that poll? There were just some amazing highlights in this. Among notable things, Justice Sotomayor has the by far highest favorability ratings among the public. Tied for the next highest approval ratings among the public are Chief Justice John Roberts, insert shrug emoji here, and Justice Kataji Brown Jackson. No surprise there. Most unfavorable is actually a tie. Justice Thomas and Justice Kavanaugh, each at 36% unfavorable, which raises a serious concern for me about whether we are doing our jobs, because Sam Alito is only at 19% unfavorability ratings, and I worry that people are not making their way through full episodes, if that's where they stand. Justice Kagan had the lowest unfavorability rating, but she's also the most anonymous justice. So over 70%

of people were unable to rate her compared to 37% who were unable to rate Justice Thomas. We should say, so I agree that the Alito numbers are suspiciously low, the disapproval numbers are the unfavorable numbers, but he's the second most anonymous justice. So 62%, so he's 19 favorable, 19 unfavorable, and 62% unable to rate. So it's not as though the 19% unfavorable is offset by some large favorable number, but I still think we need to work harder. Maybe front-loading the episodes with the Alito commentary is a no-we-will-take going into this season. Yeah.

So maybe back to the court's general approval ratings, we've also increasingly seen Democratic political leadership picking up this trend about concerns about the Supreme Court and pressing the issue. So Vice President Kamala Harris appeared on Meet the Press and called the court activist. And former Secretary of State and Democratic presidential candidate Hillary Rodham Clinton said on Watch What Happens Live, you know, the Bravo TV interview with Andy Cohen, she said she would like to see the court repudiated by the people electing a Congress that codifies rights that the court is taking away. To which I just have to say, like, ladies, if you want to talk about the Supreme Court, if you're looking for a platform to talk about the Supreme Court, there's this great podcast, I know, that would be happy to have you. Like, I like Bravo, right, Justice Law is the next percent, but that's just not the theme. No need to choose, right?

We can do Bravo. We can do strict scrutiny. We would love to see them make their own. You saw what Andy Cohen did on New Year's, right? Like, do you want to talk with him or do you want to talk with me? We were stone sober, so. We wanted to discuss the chief's response to these developments and his response to the question, why public opinion should matter to the court? They tell people that their opinion of the court shouldn't depend on the court's own opinions. And before we get into the substance, you know, the statement, I don't understand the

connection between the opinions people disagree with and the legitimacy of the Supreme Court has extremely strong Lucille Bluth energy to me. Like, I don't understand the question and I will respond to it. I feel a little bit nervous making cultural references while Melissa isn't here, but that was an okay one, right? Michelle and I know Melissa when it comes to pop culture, but I know her as a development, you know, reasonably well. Michelle? That's not why I was chosen. Same, Michelle, we're the same.

But on a more serious note, this is, or this was, kind of a weird position for the Chief Justice to take in particular. You know, think back to the criticism of the Chief Justice, you know, by his fellow justices on the court, you know, who were appointed by Republican presidents or some conservative commentators who have accused the chief justice of casting votes in particular cases in order to preserve public opinion of the Supreme Court as a less partisan institution. This was part of the criticism of the Chief Justice's votes in the Affordable Care Act case, NFIB versus Sebelius. It was a criticism of his votes, you know, to invalidate President Trump's rescission of the Deferred Action for Childhood Arrivals program. It was also a criticism of his votes to invalidate President Trump's attempt to add a citizenship question to the census. I could go on. Right, so, but, you know, the accusation has been that he has cast, he, the Chief Justice, has cast at least some votes with an eye to preserving the court's

institutional stature, right, as a non-partisan or at least a less partisan institution in the eyes of the public. And, you know, this is partially why commentary on the Chief Justice often refers to him as an institutionalist, because he appears at times to vote in ways that take into account the public's perception of the court and the need to preserve a perception that the court is doing something other than politics, which, you know, just sort of undermines the sort of faux puzzlement that he seems to be evincing at the suggestion that, you know, that the public may be questioning the court's legitimacy. There's a connection between the appearance of partisanship and the public's perception. And I think that was always just kind of a weird type of institutionalism, a superficial kind of institutionalism, or the appearance of institutionalism. Rather than making decisions that would actually reinforce the legitimacy of our government,

like allowing federal courts to invalidate partisan gerrymanders or upholding provisions of the Voting Rights Act that would allow more people of color to actually cast legal votes. He conspicuously does not do that. He'll vote in ways that generate a loose sense or stories about or a story that can be told about the court that says it's not just an arm of the GOP. And more generally, the Chief Justice, as well as his fellow colleagues who were appointed by Republican presidents, have invoked concerns about public confidence in the Supreme Court as a basis for criticizing the Supreme Court's opinions.

So, for example, the Chief Justice's dissent in Roberta Bell v. Hodges, the big marriage equality case, said as follows. But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. Stealing this issue from the people, for many, will cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept, right? So he is invoking the public's opinion of what the Supreme Court is doing as a basis to question whether the court's decision is correct. And Justice Scalia's dissent in the same case did the same thing, but as usual, right, like a little bit more obnoxiously. So he said, hubris is sometimes defined as overweening pride, and pride, we know, goeth before a fall. The judiciary is the least dangerous branch of the federal branches because it has neither

force nor will, but merely judgment, and must ultimately depend upon the aid of the executive arm and the states, even for the efficacy of its judgments. With each decision of ours that takes from the people a question properly left to them, we move one step closer to being reminded of our impotence, basically inviting disobedience with the court's decisions that people don't agree with as a basis to question the court's legitimacy. So the chief's statement also seems to assume that criticism of the court's decisions

is all outcome driven. All people are saying is that, look, I just don't like the results of these cases but you know one thing to keep in mind is that that's actually a legitimate thing to do. It can be perfectly valid to critique the court's decisions especially when those decisions are literally endangering the lives of pregnant people who are forced to wait while lawyers decide what their doctors can offer them care. And as you say, I'm not sure that the criticism of the court is even really just about outcomes or results, right, at least in any particular case.

I think it actually makes very good sense that members of the public might find it surprising and troubling to learn that the Constitution apparently just enacts the Republican Party's platform into law. At least that's the clear sense of the last Supreme Court term. And when the public does view the court's recent decisions in the aggregate, it seems eminently reasonable for observers to conclude that the court is acting in a political fashion. And that might cast some doubt on its legitimacy, if its legitimacy derives from some sense that the work of the court stands at least to a degree outside of the work of ordinary or low kind of politics. Because whether we're talking about

just thinking about the court's sort of recent flurry of activity, whether we're talking about invalidating COVID restrictions, state or federal, climate change, abortion, guns, voting rights, this term we're going to see the court intervene on affirmative action, more voting rights and democracy, more environmental protections, Native American rights, and more. Time and time again, the court majority seems to be saying, and we have every reason to expect it will continue to say, that, look, we examined the Constitution and history, and guess what? It turns out, Framers wanted the GOP platform all along. It's like, you know, not that surprising. People have some questions. And, you know, the proof is also kind of, at least in my mind, about what the court's behavior is emboldening and leading to.

So here I would just point to the recent Fifth Circuit decision on net choice. This is the case where the Fifth Circuit said, actually, the First Amendment requires content providers like Twitter or Facebook to allow Nazis and hate groups to say whatever they want on their platforms, because apparently when content moderators moderate content, i.e. determine who can say what on their platforms, the content moderators are not engaged in speech. And, you know, I feel a little bit nervous saying this with Don Herzog in the classroom, but I am slightly confident enough to say this feels a little inconsistent with basic doctrine that has governed the First Amendment for the last century, if not more. You know, the Fifth Circuit was kind of like, eh, to where? Looks like a public square to me. And, you know, what they said is kind of like, eh, Twitter looks like a public square to me. And, you know, what they said is, again, when content moderators are exercising editorial discretion, deciding what to publish or not, that is not a form of speech. And it feels like

all of media law, right, would like a word with this, whether we're talking about radio broadcasters, newspaper publishers, like you need it. And the Fifth Circuit's very narrow conception of speech is also inconsistent with broader accounts of what speeches that courts have adopted elsewhere, namely whenever they are deciding a challenge to an anti-discrimination statute. So Masterpiece Cake Shop was a recent case where the court, you know, was asked to decide whether Colorado's enforcement of an anti-discrimination ordinance to prohibit a baker from refusing to bake or sell a wedding cake to a same-sex couple, whether that was speech, because cakes are speech. And, you know, some of the justices, like, really thought, apparently, like, making a cake, that's speech,'s speech but like exercising editorial discretion

is not and this term you know 303 creative versus elenis they'll be asked to decide whether colorado attempting to enforce an anti-discrimination ordinance against a website designer whether that regulates speech as well and it feels like this decision is what happens when you tell lower courts to just quote do originalism and allow them to jettison precedent because you have jettisoned precedent about the importance of precedent when you overrule Planned Parenthood versus Casey. You know, that case was not just about abortion, but also about the importance of respecting the court's precedent. It's also what happens when you've essentially told the lower courts that you can just ignore any Supreme Court case that you think five of us

disagree with, which is basically what they told Texas and the Fifth Circuit in the SBA case when they allowed Texas before the court actually overruled Roe v. Wade to just nullify a right because, hey, you guys know we're going to overrule it when we get the chance. This is what the Fifth Circuit said. And I'm going to quote here because I just, it's just why. Okay, quote, rather than mount any challenge under the original public meaning of the First Amendment, the platforms instead focus their attention on Supreme Court doctrine. Like, why are you guys bothering, bothering to look at the cases, right? This is just straight up, as someone would say, vigilante shift, or judicial joyriding, right? Just like joyriding

through precedent, right? Who cares? What is law anyways? I'm always a little bit nervous to do a live show because sometimes I have a thought and I'm worried about sharing the thought while other people are here with me. I'm just going to do this one briefly

and you'll find out if it's really bad. Okay, you guys might be the only ones to hear this, but let's do it. This feels like originalist hotboxing to me. You go into chambers, you shut the doors, you roll off the windows, you toke up on some Federalist papers, that's one of the minds here, and you just do what moves you, right? Like, that is the vibe. Melody, you have to keep that.

Yeah, that is the vibe. Melody, you have to keep that in mind. Yeah, that's stated. I appreciate your votes of confidence. The fifth record also had this to say. Far from justifying reinforcement facial invalidation, the platform's obsession with terrorists and Nazis proves the opposite. Like, get over it, platforms. That's not real on Twitter. I mean, look at my replies, right? Like, it's real. And, you know, the court itself has displayed a brazen willingness to kind of disregard facts and law in order

to reach the results it wants, and it's encouraging the same in the lower courts. And, you know, one recent important and close to home for me example of this, it was Justice Alito's dissent in the YU Pride versus Yeshiva case, and maybe I'll take a beat to talk about that. So I teach at Cardozo, that's part of Yeshiva, Michelle until this year also taught at Cardozo. So the case involves an undergraduate group, the YU Pride Alliance, that's seeking recognition as an LGBTQ student group at YU. A New York trial court ruled earlier this summer that the university had to recognize the group under New York's anti-discrimination laws.

YU is an educational institution. There's no exemption for educational institutions under the New York law. YU then went to the Supreme Court asking the court to state the trial court order. This is a trial court decision that hadn't been reviewed by the state's own court, so it was an incredibly aggressive ask, and yet it almost worked. The Supreme Court declined by a vote of 5-4 to state this New York state trial court order. And back to Justice Alito, the dissent is pretty insane in several points. So Justice Alito framed the question in the case as follows.

Does the First Amendment permit a state to force a Jewish school to instruct its students in accordance with an interpretation of Torah that the school, after careful study, has concluded is incorrect? You know, it is just not clear to me how requiring a school to recognize a student club on equal terms is requiring the school to instruct its students on anything in particular. And Justice Alito goes even further to say this kind of trial court decision represents a state imposition of its mandatory interpretation of scripture, which is a mandatory interpretation of scripture

is a very weird way to describe an anti-discrimination law to my mind. A state religion, not just a measure to promote equality. So, you know, a quick postscript on that dissent. So, YU again, 5-4, lost its day request. YU University announced that it was temporarily canceling all undergraduate clubs and groups rather than recognize YU Pride. And a couple of days later, the YU Pride student group basically said they would agree to a stay at the lower court order so that their popular classmates could resume their club activity rather than have all clubs be put on hold. So the lower court litigation is ongoing. And just one thing, I'm going to take a personal privilege to make clear, so this all involves

Yishu University, of which Cardozo is a part. But Cardozo, the law school, always has had, always will have LGBTQ student groups. They have been supporting our faculty, our administration, our outlaw leadership this year is amazing. And they have been incredibly active in supporting these undergraduate students. So I just wanted to take a minute to shout out our incredible law students at Cardozo who are doing this work to support the undergrads, even though they've all got, we've all got skin in the game, I suppose, is the point, even though, but as a technical matter, why use a behavior resembling its club has no bearing on the law school.

Yeah. And Justice Alito's dissent, the point is that reasoning, what he describes as reasoning, is part of the challenge to the court's legitimacy as much as the outcome of the case is, right? Like in that separate writing, Justice Alito is saying, enforcing a law, right, an anti-discrimination statute for reasons that have nothing to do with religion is the same, right? And like, I do not have to explain or acknowledge how it is any different than the school or the stage just telling right the school here's what you should believe about your religion for religious reasons um and it's by doing all these things the justices are

acting time and time again in a non-judicious manner, as unrestrained by law, as unrestrained by facts. And this is a piece of what allows people to question the court's legitimacy. Like, they are not acting on the basis of law, but just on the basis of vibes. And there was an important example of this just last night. So the court, with no explanation, granted Alabama's request to allow it to proceed for the execution of a death row inmate, Alan Miller, whose execution the lower federal courts had stayed. So this was an unreasoned, unexplained order that this individual could be killed immediately. The court didn't tell us why the lower courts were wrong to have put that execution on hold. It just said execution can go forward.

So that was a five-court decision. The five men on the court, actually. So it was the three Democratic appointees, along with Justice Barrett, who dissented from that order, granting Alabama's request. And according to Shadow Docket, a guru and friend of the show, Steve Loddick, that order last night clearing the way for Alabama to execute at Miller was the 12th time, 12 times since July 2020, that the justices have granted emergency relief to allow an execution to immediately proceed, where the lower courts had, for reasons, right,

different reasons in all these cases, but always by giving reasons, concluded that those executions could have gone forward. So of those 12, 11 had literally no explanation from the Supreme Court. So we're left to guess, we're left to assume that they don't think it matters to provide any kind of legal analysis. Now, we should say Alabama actually wasn't able to proceed last night with the execution, but that's not because of anything the Supreme Court did. The Supreme Court said, please go ahead, and we're not even going to tell you why.

And in fact, the fact that they weren't able to proceed with the execution, I think makes what they did even worse, since they called off the execution reportedly because the Alabama corrections officials were unable to locate a vein in Mr. Miller's arms. And Mr. Miller, the person who was seeking to stay challenging the state's imposition of the death penalty was doing so because he said the state's execution protocol, right, is being administered in this haphazard manner. He specifically argued he needed to be

executed using another form because the state had such problems locating individuals' veins and administering the death penalty in a way that generated serious risks of suffering, torture, and other things that it seemed like actually came to fruition. And the court didn't bother to tell us why they didn't think that was the case. So I want to know, or I want to go forward and say, where does the chief think the court's legitimacy comes from? So that we can't step back around that previous discussion. It's as if the chief imagines that people will view the court as legitimate if they just sit down in a library somewhere or a classroom

and read the opinion and find it intellectually satisfying. He thinks that's where, is that what he thinks the court's legitimacy comes from? Or maybe the hope is that lawyers or other public intellectuals will read the opinion and then convince the public that they found the opinion intellectually satisfying and legally defensible and that the public will listen.

I think he's imagining Adam Levine reading the opinions and saying, holy F, that opinion body of yours is absurd. I might have just killed the meme. The meme lives on, I think. But

not Leah's point, but Michelle's. I mean, those potential visions of what the sources of the court's authority or the source of the court's legitimacy are pretty narrow. So people who have thought seriously about the court and questions of legitimacy, including but not at all limited to Richard Fallon in a recent book, you know, talk about different strains of legitimacy that we should understand to be

at play. So, you know, there is legal legitimacy in the sense that the court is doing things that sound in the register of legal decision-making and that are based in law, I would suggest that actually this emergency attack penalty docket behavior doesn't even satisfy that kind of baseline requirement of legal legitimacy. And I think there are probably other examples. The more you read cases like Dobbs and Bruin, the harder it is even to sort of view them

as sort of sounding in the register of the kind of careful and fair consideration of the types of legal sources that courts typically consider. But again, that's only one narrow type

of legitimacy. So I think there's, there will always be other ways in which the court can attain legitimacy. So let's talk about, a little bit about sort of the different kinds of legitimacy. There's sociological legitimacy. Are the court can attain legitimacy. So let's talk a little bit about the different kinds

of legitimacy. Sociological legitimacy are the court's decisions accepted by the public. This doesn't have to mean, does the public accept the results of the decisions? It could also mean, does the public accept how the court is deciding these cases? The methods and the tools it uses

represents a way of deciding cases and dealing with issues that we accept. And that leads to accept the court's authority to decide these issues. And to pause on that for a sec, the question isn't just like, does the public accept the court's overruling of Roe? It's more like, does the public accept

that the court has the authority to decide these issues in this way in the first place? And I think one reason the public has accepted the court's authority historically is because of some belief, as we've now returned to a few times in this hour, that the court wasn't just a political actor that was doing something different from the political branches. And that's just sociological legitimacy. There's also democratic legitimacy. Are the court's decisions

sort of wildly out of step with the views of the American public? Are its decisions preserving and reinforcing meaningful room for American democracy? Then there's substantive legitimacy. Are its decisions ensuring substantive justice? I think we could go on, but the point is that different aspects of the court's legitimacy do depend upon acceptance by the American public. Right, so even if we kind of all posit that it's complex, right, the relationship between the court and public opinion and public approval, and the court is certainly not required to kind of follow, you know, majority public opinion, you know, has it always, nor should it always, that there are many different ways that public opinion is woven throughout different conceptions of the court's legitimacy, and all of that seems to be kind of alighted in the kind of brush-off

from Chief Justice Roberts in some of his recent statements. And, you know, the thing is the court has understood and has acknowledged in the past that its legitimacy depends in part on the public's perception of it and on public opinion, right? In Casey itself, one of the cases that Dobbs overruled, the court writes, the court's legitimacy depends upon making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the nation. I mean, I guess the court just repudiated that in overruling Casey, but it once really represented something important about the way the court thought about its relationship to the public. So after the chief justice joined the Troll World Tour and goes out,

Elena Kagan decided to step in and add a few remarks. She was like, I see you, Troll World Tour. I'm going out on my own solo tour. So at a few different public appearances after the Chief Justice made his remarks, she said as follows, quote, The way the court retains its legitimacy and fosters public confidence is by acting like a court,

by doing the kinds of things that do not seem to people political or partisan, by not behaving as though we are just people with individual political or policy or social preferences. That is where we gain our legitimacy. And I was just like, yeah, damn girl. Justice Kagan also said, quote, people are rightly suspicious if one justice leaves the court or dies, and another justice takes his or her place, and all of a sudden, the law changes on you. She said, that doesn't seem like law. Shouldn't even have to reference

the chief. This was just an amazing subtweet. And I just want to quickly note why these remarks are important. Like, it is validating. It matters that a Supreme Court justice is saying these things so that the only view coming from the court is not, you know, just the chiefs who cares about public opinion at all. You know, Justice Kagan's remarks, I think, avoid normalizing, you knowizing what is happening and what has happened with the court. It makes it more difficult to write off the voices of people who have raised concerns about what the court is doing now. It empowers people to believe what is happening in front of them and to trust that. And in the interest of rehabilitating our boy Steve Breyer just a little bit,

we should note that he jumped into the fray a little bit, too. In an interview with Chris Wallace that is now streaming, and I think will be on CNN by the time this episode is out, now retired Justice Breyer said that the last term was, quote, very frustrating. He warned that when opinions are written too rigidly, the world comes around and bites you in the back. I'm not quite sure what he meant by that, but clearly even he, sunny, optimistic Steve, is troubled by the turn the court has taken just in this last term. Yeah, and Steve, you still have an invitation to come on the podcast,

so we would need to rename the segment from Mitch on the bench to Mitch off the bench. Otherwise, still to have some questions for him. Okay, so we are now going to shift now to a court adjacent, but incredibly important segment of the show that is also particular to us in Michigan. So in the wake of the Supreme Court's decision over ruling Roe v. Wade, which took away people's right to decide what to do about their pregnancy, people have been trying to restore the protections the courts took away in various ways and to avoid the generationally tragic consequences we have seen from states reinstating or enacting restrictive abortion laws or even bans.

Here in Michigan, some of those efforts have been channeled to the Reproductive Freedom for All ballot initiative, also known as Proposed Free. It's a ballot initiative on the Michigan ballot this upcoming election, and it's about whether to add explicit protections for reproductive freedom to the state constitution. And here to talk us through the ballot initiative and what it means to organize and fight to restore rights, we are delighted to be joined by Summer Foster, the co-executive director of Michigan Voices. Welcome to the show, Summer.

Thank you for having me. Great. So let me get on a little bit of groundwork first. So Michigan actually has pretty expansive direct democracy, right? That is ways for the voters to act directly rather than through elected officials. So among other things, the Michigan constitution allows ballot initiatives, which is when a group of voters organize, collect petition signatures, and get a question put on the ballot so that voters can vote on it directly. So Michigan Reproductive

Freedom for All organized a campaign to get an initiative on the ballot that would amend the state constitution to add explicit, specific constitutional protections for reproductive freedom. So Summer, could you tell us about Michigan Voices and the work that went into getting those signatures to ensure that people could vote on whether to establish this explicit right to reproductive freedom in the state constitution? Sure. So Michigan Voices is a 501c3 nonprofit, and we work with other nonprofit organizations to build strategic power and to collaborate and align programs and plans and so in January of this year along with the ACLU of Michigan and Planned Parenthood Advocates of Michigan we formed the Reproductive Freedom for All

campaign and we filed ballot language with the state of Michigan. As you all know, before the Supreme Court overturned Roe v. Wade, a lot of people didn't see Roe in jeopardy. And so the campaign was really slow going. But when the Alito League happened, the campaign picked up and people, you know, got afraid. They got engaged and they got, they were defiant, quite frankly. They wanted to make sure that they were doing what they could to make sure that we were protecting the right to decide in Michigan. So between the Aledo leak and between, and when we turned in signatures, we had 65,000 people sign up to volunteer for this campaign, which was incredible. We collected petition signatures in every county in the state of Michigan.

My phone was ringing off the hook from people in the Upper Peninsula wanting to know how they could get their hands on petitions. It was a really, you know, interesting and exciting to see so many people so passionate about wanting to use direct democracy to make change within their state. And Summer, could you tell us more about the importance of Proposal 3 specifically? Sure. So Michigan, if you do not know, has a 1931 law on the books that not only bans but criminalizes abortion. And so when the Supreme Court overturned Roe, there was a risk that the 1931 law would go into effect and abortion would be illegal and providers would be subject to criminal penalties. There is currently an injunction, I believe it's an injunction on the 1931 law, which means that it's not in effect right now, but it's important that we protect permanently the rights for women to decide what they want to do with their bodies.

And so this is the most durable form of making sure that we add those protections to the Michigan Constitution. And it would also protect Proposal 3, other reproductive freedoms, in addition to the right to abortion, including access to contraception. I know there are some men at other law schools who believe we need to apologize to them. It's not happening. Because the court hasn't yet overruled Griswold, the decision protecting the right to contraception. But here in Michigan, you know, the Republican candidate for attorney general

actually expressed an openness and an interest in banning one form of contraception, saying that we should treat it like fentanyl. So the ballot initiative received a record number of votes, a record number of signatures, nearly a million, which is amazing. And then it went to the State Board of Canvassers. The State Board is the institution that certifies election results. They also certify the results of petitions. The board is required to be comprised of an equal number of members of the two political parties who received the highest number of votes in the last election.

So it's two GOP and two Democrats. What did the board do with the petition? Well, quite frankly, in the beginning, they didn't do their job. They deadlocked two to two. We had more than enough signatures to qualify. They didn't have any problem with our signatures. We had the form of the petition approved beforehand, and we had the language of the petition approved beforehand. But they brought up a concern over spacing, and they deadlocked, and they refused to certify the petition.

So just to spell this out, a group opposed to abortion rights challenged the ballot in Michigan because they said there was some less than ideal spacing between the words on the petition. They used that as a possible basis to try and disenfranchise the individuals who signed the petitions to get it on the ballot and to prevent the millions of Michiganders from voting on this in the fall. This is part of why the dots line of, oh, you can just vote.

We're returning this issue to the voters always rang so hollow to me, like given the current attack on democracy and voting rights. You know, at the same time, the State Board of Canvassers deadlocked on the Reproductive Freedom Ballot Initiative. They also deadlocked on a voting rights proposal as well.

So the GOP members of the board also refused to certify a valid initiative on voting rights that and one of the things sought to clarify how limited the State Board of campuses role actually was so this really was or at least also was an attack on voting rights as well as an attack on reproductive freedom okay so after the board deadlocked, want to walk us through what happened next? So we sued. We went to the Supreme Court, and we asked the Supreme Court to compel the State Board of Canvassers to do their job. Oh, you got to give the result because it was the Michigan Supreme Court.

We should clarify. The good Supreme Court. We asked them to do their job and to place the amendment on the ballot. And so the Supreme Court ruled 5-2 to ask the Board of Candidates to put not only our amendment on the ballot, but the Promote the Vote amendment on the ballot as well. And after the Supreme Court ruled, we went back to the Board of Candidates. It took about 30 minutes. They voted unanimously to put it on the ballot. The delay was a delay tactic.

They got what they wanted in the news stories, but we're moving forward with our campaign. So let me just highlight one thing before we close out, and I want to talk about the concurrence by Chief Justice McCormick on the Michigan State Supreme Court. This is what she said. They would disenfranchise millions of Michiganders not because they believe that many thousands of Michiganders

who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone bad. There was also a great separate writing by Justice Bernstein, who, in a footnote, all the good stuff is always in the footnotes, said as follows. Justice Zara, who is one ofnote, all the good stuff is always in the footnotes, said as follows, Justice Zara, who is one of the justices who wouldn't have ordered, you know, the Michigan Court of Canvassers, Board of Canvassers to certify the ballot initiative, Justice Bernstein said,

Justice Zara notes that as a wordsmith and a member of this court, he finds it, quote, an unremarkable proposition that spaces between words matter. Well, as a blind person who is also a wordsmith and a member of this court, I find it unremarkable to note that the lack of visual spacing has never mattered much to me. Justice Bernstein is up for reelection this fall. And Keira Bolden is seeking election to the court to replace one of the justices who voted against certifying

both petitions. So I just wanted to make a note of that for interested parties. So as Leah just highlighted, this question will be on the ballot in November, and so will lots of other important races, including judicial races. But back to the ballot initiative, Summer, anything people can do to help get involved with the ballot

initiative right now? Absolutely. I would ask that people go to my reproductivefreedom.org. It's M-I reproductivefreedom.org and sign up to get involved in the campaign. We need folks talking to their friends, families, and neighbors of the importance of protecting the right to decide in Michigan. And we need folks to show their visual support by putting up a yard sign or a bumper sticker. And so I hope you will all get engaged in this campaign. Yeah. And this is one of the things going to law school and being a law student is training you how to do. Because like some of the conversation about this ballot initiative is how far does this go? What does this do? What does it not do? And those are arguments that we are trying to prepare you to get ready to have and be able to talk to people about. So this would be one wonderful way

to put your skills to use and get involved in the community. So thank you so much, Summer, for taking the time and all the work that has gone into Michigan Reproductive Freedom for All. Any kind of closing thoughts or tips for students who are wondering, what is something I can do as a lawyer who is looking around and seeing maybe the federal courts aren't the place to make some of the change or protect the rights that matter to me? Sure. So I will say this from my perspective as a local elected official, I am always a proponent of people doing work close to the ground and closest to home,

because that's where I feel like you can make the biggest difference. And so I would encourage people to use their skills and their talents to look for ways to do that. Thank you again so much. So we have a little bit of an odd and end before we get into Michelle's thoughts on the upcoming term. So odds and ends. Let's start with the good. KBJ watch. Justice Jackson had a photo shoot with Vogue with Annie Leibovitz with a beautiful piece accompanying it that was written by Amebe Umana, and it was everything. If you haven't seen it, look at the photographs. They are just stunning. Yeah, and not just the photos. The accompanying piece, Umana knows Jackson, and it's not just a profile by a magazine journalist.

She doesn't have a personal connection to the subject, so it's very much worth reading if you haven't read it. KBJ also had her first vote. Obviously, she'll hear her first oral arguments once the court resumes certain cases in October, but voted, you know, unsurprisingly, in a couple of cases now on the shadow docket. The first of these votes was out of a district court decision in Texas that had enjoined the Biden administration's immigration enforcement priorities guidance. So a district court enjoined this guidance memo. Of course, the Fifth joined the Biden administration's Immigration Enforcement Priorities Guidance. So a district court enjoined this guidance memo.

Of course, the Fifth Circuit said, yeah, that's cool, that could be enjoined. And the court left the injunction in place, and all four women justices dissented. So again, Barrett joined Sotomayor, Kagan, and Jackson, as she did in the Alabama case the court heard last night. In his public appearance, the chief also made these remarks alluding to KBJ. It almost causes us to up our game a little bit, to have a new member, Roberts said. Now there's a new person there, and I think each of us

will be a little more careful in explaining why we think what we think. It will be new to her. What do you make of this? I like this, because it almost conveyed to me that he's worried about her calling his bullshit. I like that image. That's what

I chose to read into this. I wonder whether, so we said that the highest public approval ratings go to Sonia Sotomayor, but tied for second to Justice Roberts, and just like barely, barely, barely a justice, brand new justice, Justice Jackson. So she's already tied him in public approval ratings, having not ever even taken the bench

on the Supreme Court. So I wonder whether he's still made. And I guess my last thought on that would be after the cruising nomination process that she went through, I think it's quite possible that the public looked at it and said, why are you treating her like this? And so this is someone who comes to the court with perhaps a good level of public support behind her. And, you know, deservedly so. We are delighted to have Michelle with us.

And because we do have her with us, we wanted to get her thoughts on this upcoming term. So, Michelle, what cases or case are you watching this term? Anyone who knows me or has even been on the website will not be shocked to know that I'm going to talk about a particular case that I'm particularly interested in, and that's students for fair admissions versus University of North Carolina, and students for fair admissions versus Harvard College. These, in fact, are the two big affirmative action cases that are coming up right to us this term. And both of those cases raised the same key issue does the use of race in college admissions violate the equal protection laws of the 14th amendment both cases are scheduled to be argued on October 31st

boom happy Halloween first a magnetic world argument initially the two cases had been said to be heard together, but now they're being heard separately, albeit on the same day, Halloween. This means that each case will have one hour total of oral argument time. So why did this happen? In a word, KBJ. After a confirmation hearing in March, Jackson testified that if confirmed, she would not participate in the Harvard case. Jackson was concerned about the appearance of bias because she served in the Harvard Board of Overseers, which is essentially a governing board of Harvard College composed

of about 30 alumni. The announcement led the court to separate the two cases so that Jackson could participate in the deliberations over the UNC case. What this means is that the Harvard case will have only eight justices deliberating, whereas the UNC case will have nine. Sadly, I don't think this is going to affect the outcome at all. I think the court will almost certainly overturn Bruder v. Bollinger, but this at least will allow KBJ to participate in this extraordinarily important case.

So Michelle, as you just suggested, this case, like many other cases on the court's target recently, invites the court to reconsider, overrule, maybe just abandon or recognize as having been abandoned, whatever all that means. It's primary cases. So maybe first you tell us more about the key primary case here, Grutter v. Bollinger. Folks in this room will be familiar with it, but the rest of our listeners may not be. I think

many of you will be familiar with Grutter v. Bollinger, but just two seconds on it. In 2003, the court ruled in Grutter v. Bollinger that colleges and universities could use race in admissions decisions. So Grutter said, applying strict scrutiny review, that the use of race as one factor in the admissions determination

did not violate the equal protection clause of the 14th Amendment. Under Bruder, universities must consider, if not exhaust, race-neutral measures prior to using race and must treat all students as individuals throughout the application process. And what was the affirmative action plan at issue, of course, in the unison issue in Grutter, the one used right here at the University of Michigan Law School. And who is asking the court to reconsider

Gruner in these cases? So a lot of people didn't like the outcome of Gruner, and one of them was Edward Blum, who is a white anti-affirmative action activist who has orchestrated many lawsuits opposing laws and programs that would benefit

racial minorities. He was behind, perhaps most importantly, Shelby v. Holder, which gutted a key provision in the Voting Rights Act of 1965. But his record of affirmative action litigation hasn't been quite so strong. He unsuccessfully challenged the use of race in the admissions procedures in the state of Texas in Fisher v. Texas. But if you don't succeed, try, try, try again. It's Mr. Guam who's behind the Students for Fair Commissions group, the petitioners

in both of these cases. So you mentioned the cases were originally consolidated and then separated. Can you talk a little bit about the ways that the Harvard and UNC cases differ before we sort of talk about what unifies them? Sure. So in the Harvard case, and this is not in the UNC case specifically, in the Harvard case, the petitioners contended the university's use of race-conscious admissions discriminated against Asian-American applicants. The petitioners say Asian- Americans are significantly less likely to be admitted than other applicants. Now, Harvard seriously denies this main argument and says it does not discriminate against Asian

American applicants. Harvard's brief says, quote, Asian American applicants are accepted at the same rate as other applicants and now make up more than 20% of Harvard's admitted classes. And that, quote, the petitioner did not identify a single Asian American applicant who was even arguably discriminated against. The federal courts, both the district court

and the First Circuit Court of Appeals, upheld Harvard's use of erasing admissions and concluded that it did not discriminate. So in the UNC case, the specific issue having to do with discrimination as it applies to Asian Americans is not a principal claim in the UNC case. The difference really also turns to the fact that one school is public and one school is private. In Harvard, the central claim is that its use of race violated a particular and important civil rights statute, a civil rights statute called Title VI of the Civil Rights

Act of 1964. That statute prohibits entities receiving federal funding from abusing race in a way that discriminates. So in the UNC case, though, it raises both the Title VI claim as well as a claim under the Constitution. And because UNC is a public institution, it's also covered under the Equal Protection Clause of the 14th Amendment.

So the UNC claim is essentially that the use of race by UNC violates both the statute and the Constitution. And in effect, they've asked the court to overturn Grutter versus Boulanger. So I'm a federal courts and a procedure person. So before we get into the possible overruling of Grutter, I would love to hear your take on the standing issues in these cases.

So standing, for those of you who might not know, is a court-made rule that enforces the case and controversy requirement of Article III of the Constitution, the idea that the federal courts can only hear cases and controversies. And so plaintiffs, in order to get their case heard by a federal court, have to show we experienced or I experienced a real injury and that I have a real interest in the outcome of the litigation. They can't just have a ideological interest in the case or be raising a generalized grievance. So just as an aside here, this is where sort of con law and federal courts come together in this question of justiciability, whether a federal court can

actually hear a particular claim. And for all of you sort of budding civil rights lawyers out there, it's so important not just to focus on the substantive law of civil rights, but also understanding how the federal courts actually work and that directs you to Con Law 1 as well as federal courts. Back to standing, though, the injury standard for standing, whether this particular plaintiff is qualified to turn the engines of an Article III court, is pretty high, okay? But that doesn't seem to be the case when it comes to affirmative action cases. There's actually two standing problems in these two

affirmative action cases. The first standing problem is not new. It goes back to the 1970s into a case called Bakke and the cases that came after it. Ordinarily, the regular standing process, you have to show ways in which the plaintiff had to show how the defendant actually injured them and that they were injured by what the defendant did. They would have to show that but for the action of the defendant, this is in the context of affirmative action now, they would have been admitted to the school. But the court has relaxed the standing requirement

in affirmative action cases, effectively saying that all plaintiffs have to do is show that they've lost the right to compete on an equal playing field with other applicants, not that they would have been admitted had there not been an affirmative action plan. Now, as a general matter, I don't really have a problem with the idea of sort of having a more relaxed contextual understanding of standing, right? Because I tend to think that the doors to federal courts should be more open than to

be closed. But the problem is that the court doesn't apply the same relaxed standing standard equally to all plaintiffs. It basically applies different standing standards to different kinds of plaintiffs and different kinds of cases. And if, in fact, the court is picking and choosing what kind of standing standard it will apply, depending on the nature of the case, then it's really using the standing requirement as a kind of determination on the merits, which we shouldn't be doing or the court should not be doing. So the first problem in the case, the first standing problem in the case, it is a thumb

on the scale in favor of the petitioners. Okay. And you said there were a couple of standing problems. What else? There's more, right? Two seconds on what's called associational standing. Now we're really going to do some common law, right? Two seconds on what's called associational standing. Now we're really going to do some common law, right? The court has sometimes said that associations, organizations like Defenders of Wildlife or the ACLU

can sue federal courts if they can show that the claim that they're raising is related to the purpose of the organization if there's at least one member of the organization who could otherwise make that individual requirements of standing. Okay? The problem here, so a guided organization, students prepare for admissions. The problem here, the universities argue, is that at the time the complaint was filed, the petitioner's particular group, SFFA, wasn't a genuine membership organization. Instead, it was a litigation vehicle invented by Edward Blum to

challenge affirmative action. In effect, this is, and this I'm going to quote from the briefs now, in effect, SFFA was just a shell. Quote, a founder-controlled litigation vehicle whose main purpose was to circumvent the Constitution's bar against litigating generalized grievances, right? And so if SFFA is not really a membership organization, it can't really qualify for associational standing. So there's at least a good argument here, not a strong one, that the petitioners don't even have standing in this case.

But the SFFA is just the mastermind, not a strong one, that the petitioners don't even have standing in this case. But the SFFA is just the mastermind, not a membership organization. That's the second Easter egg, just putting that there. There you go. Again, I'm sorry, cultural references, pop culture references for those people not in the Taylor Swift reads. Go Google this

after. I needed a primer before we got on here. But this didn't stop the court from granting cert. Okay, so that's standing. You want to talk, Michelle, about the role of precedent and stare decisis in this case? Yeah, that's what we've been talking a lot about on the podcast, right? And it's an incredibly important

point as we think about this question of the legitimacy of the Supreme Court. Let's now take a look at what the precedent is against the background of what's going to be decided this term. Grutter v. Bollinger was set in 2003, which is pretty recently, right? But it's been impelled even more recently than that.

In 2016, Justice Anthony Kennedy, writing for a 4-3 majority, reaffirmed Grutter v. Fisher v. Texas. That's just six years ago, right? Both of the universities in these cases rely on the rule of stare decisis, which suggests that courts should follow the rules laid down in similar cases unless there's a really, really, really good reason for departing from this rule. And just to sort of weave this in

to what we were talking about before, that's really what's so important about Casey. Planned Parenthood versus Casey gives this very elaborate discussion of stare decisis and the rationales the court should go through before it considers departing from a particular precedent, right? And so there's a strong argument here that stare decisis should apply, that the court should reaffirm Bruder. But as we saw in the Dodds case, it isn't clear that the current court feels bound by the rule of stare decisis. Now, this isn't just a problem for people who, like me, who think affirmative action is

constitutional. Stare decisis helps protect the court from itself. It lends legitimacy to legal decision making. But if the court changes the rules every time the court's composition changes, as Justice Kagan suggested, then its sociological legitimacy is clearly at risk. When the court overturns decisions that have been reaffirmed as recently as 2016, it suggests the reasons that the court is doing so is not because the law requires it, but because its policy preferences do. Somewhat infamously, Greer versus Bollinger had also suggested that affirmative action might be constitutional for 25 years, and maybe would sunset after this.

Of course, we are not yet 25 years from Grutter, but hashtag YOLO, right? Gotta get on that train early. So this is a show at Michigan about a case whose foundational precedent is also from the University of Michigan and involves the University of Michigan's admission policies. The University of Michigan filed a brief in this case. Can you tell us a little bit about the argument that they made? I sure can. So as many, if not most of you know, affirmative action has been prohibited at public universities within the state of Michigan under the state constitution since 2006. Michigan's amicus brief here is really interesting. It doesn't re-argue the idea that the court should have here to stare decisis or that that it was rightly decided over the Michigan things that it was what it really is is more homes of

a life of the laws not the logic it's been experienced right what what the industry is really more about is what has happened on the ground since 2016 right it's taking stock of all the things that you were the office of the undergrad now has done in an effort to create a racially diverse class and not using race as a factor in admissions, right? It speaks in great detail to all of the race-neutral efforts that the university is undertaking, including year-round recruiting and outreach, recruitment fairs in areas of substantial minority

populations, workshop for high school counselors, a dedicated recruitment office in Detroit, the creation of 55 person task force to deal with increasing minority admissions, scholarship programs, and a host of others. That's just a tenth of what the university has done since 2016. In effect, what the university is saying

is that it has exhausted all race neutral alternatives. What's the result of that? A 44 percent drop in black undergraduate enrollment and an almost 90 percent drop off a very low base in Native American undergraduate enrollment as compared to 2006. But it gets worse. There's more. Because since 2006, the undergraduate enrollment at the University of Michigan has increased by more than 25%. Now focus on this idea of strict scrutiny to bring this all home, right? The use of race at public universities has to meet the strict scrutiny standard, right, which requires a showing of a compelling governmental interest and a program that is narrowly tailored to achieve that interest.

Grutter said there's a compelling governmental interest in having the benefits that flow from a racially diverse class. Check. Got that one, right? And the Michigan, now add in the Michigan brief. The Michigan brief says that the use of race as a factor in admissions determinations, in effect, was narrowly tailored to achieve that interest because it tried a host of race-neutral measures

and none of them worked. So when you put all this together, right, you could make a strong argument the court shouldn't have taken the cases in the first place. Oh, one more thing I just forgot. There was no circuit split in this case either. We'll just hang on to that. Typically we say the court should accept certain circuit

split, but there was no circuit split here. The court shouldn't have taken the cases in the first place because there was a lack of justiciability. But even if it did, even if it does, on the merits, the university should prevail. I feel like I have a conspiracy theory at this point that the court is coming for precedents

that are associated with this podcast. So our intro music, right, is from the oral argument in Roe versus Wick, which they overrule. It is called strict scrutiny, and they are just about to make some ridiculousness about how strict scrutiny should work in the affirmative action context. This is my new conspiracy theory. Okay. So before we go, some huge news. Our first ever strict scrutiny crooked merchandise is launching on September 29th. This drop is all the excitement of a surprise ruling from the Supreme Court with none of the terror about losing any fundamental rights. It's just two really cool T-shirts.

I am wearing one. If we have been helping you get through the vibes of the current court's YOLO era, this collection is for you. And that is all I will say for now. So head to crooked.com slash store to check it out. All right, I'll close us out. Strict Scrutiny is a Crooked Media production hosted and executive produced by Aya Lipman, Melissa Murray, and me, Kate Shaw.

Produced and edited by the great Melody Rao. Audio engineering by Kyle Seglin. Music by Andy Cooper. Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz, digital support from Amelia Montooth. Special thanks to Sean DeLoach for getting our AV set up here in Michigan,

to Michigan Law School for the invitation, to Laura Furr in the development office for making the show happen. Thanks to Michelle Adams for joining us as a guest host and to Summer Foster for sharing her experience. That's all for this episode. See you next time.