Strict Scrutiny - Justice for Snowflake

Episode Date: January 10, 2022

Leah, Melissa, & Kate preview the cases to be argued in the January sitting (other than the test-and-vax cases), and also cover all of the Court-adjacent news that has happened over the last month. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court's rapid refashioning of American society and government. We are your hosts. I'm Leah Littman. I'm Melissa Murray.

And I'm Kate Shaw. And we have got a lot to cover today, having taken off the last few weeks. So we're going to jump right into some news before previewing what is to come in the January sitting. We've got a separate episode on the arguments in the cases challenging the federal government's test or vax workplace policy, as well as the federal policy governing vaccinations for healthcare workers at federally funded facilities. So we are not going to cover those cases today. But if you haven't listened, go to your podcast feed, pull up the special episode covering those arguments. So as Leah said, the court is busy refashioning American society and government. But of course, because you've got to get this stuff done. Time is ticking. So first, let's maybe get into some

news before we get into the general unraveling of law and order. So this isn't a podcast about abortion. But since the Supreme Court seems very committed to quickly ending access to safe and legal abortion, we have more to talk about on that score. And the Supreme Court issued what is known as its mandate in the Texas SB-8 case. That was the case challenging the law that has effectively shut down abortions when they are sought more than six weeks after a person's last period. As we previously covered, in December, the court ruled that the lawsuit against the various state officials on the licensing officials could proceed, but again, only against those Texas state licensing officials. The court ruled that as to the other defendants who had been named, the state court judges, the clerks of the court, the AG and the private individuals, the provider plaintiffs were out of luck.

They could not press their suit against those defendants. So what the providers asked of the court was that it quickly issue its mandate in the case so that it could then attempt to get a ruling against those very few defendants the court found could properly be sued. The mandate is basically an order that says we are done with this case. It can go back to the court that will take the next steps. And the providers basically asked the court to do that quickly so that they could get an injunction to stop the law from being enforced. And Justice Gorsuch, who authored the opinion in the SB8 case, was like, oh, I'll issue the mandate quickly. And I will do so in a way that makes sure you will never get this law enjoined by sending the case to the U.S. Court of Appeals for the Fifth Circuit rather than the district court. Now, on one level, this move,

sending the case to the Fifth Circuit, was unsurprising. The case came to the Supreme Court before the Fifth Circuit had technically heard the case in the normal course. That is, the court heard it in what is called a petition for certiorari before judgment in the courts of appeals. And in other cases where the court has done that, the Supreme Court has sent the case back to the Court of Appeals. But sending the case back to the Fifth Circuit had an entirely predictable effect. We know the Fifth Circuit is not inclined to enjoin SB8. Boom! Lawyered! There you go. Neil Gorsuch just lawyered you.

I feel very lawyered right now. The lawyering is all around me. The Fifth Circuit has prevented the district court from enjoining SB8 twice. And we know the district court is inclined to enjoin SB8. It has done so once and was on the cusp of doing so previously. So when the case got back to the Fifth Circuit, Texas filed a motion to certify a question to the Texas Supreme Court about the proper interpretation of the state law. And now this is a process that will delay the case further and keep it in the Fifth Circuit, all while the law remains in effect, preventing abortions after six weeks from occurring.

Boom! Lawyered again! Lawyered again! First by Neil Gorsuch, then by the Fifth Circuit. Don't worry, I'm sure the Texas Supreme Court will get in the mix too. Lawyer us the same way. But even before we get there, the Fifth Circuit is going to hang on to the case for a while because it has chosen to schedule oral argument on the motion to certify. To be clear, that is not the sort of thing you usually have oral argument to consider. And yet the Fifth Circuit was like, sure, great. Anything else you want a hearing on? So that hearing is set for January 7th.

We're recording on January 6th. Ruling on that will take time. If they do, I don't read the court's judgment, especially in a case of this magnitude and acceleration, to countenance such delay. I think he has the same optimistic spirit that I often bring to our conversations. He's like, I don't want to be boom lawyered. I would like to just certify this question. I've never heard of a certification question getting a hearing like this. I haven't either. But I think this gets to something we were talking about when we recorded the quick episode recapping the SB8 opinion with Commander Professor Steve Fladdock, which is the more you understood about the procedural mechanics about what the Supreme Court was doing, the more you got the sense that they were basically creating a pathway for the Fifth Circuit to allow this law to remain in effect. That is how the opinion read for those in the weeds about federal courts. And again, this is what is now playing out on the ground. He was prescient. I mean, like he was he was taping from a lactation pod and he was absolutely prescient. He was behind

the pod. I don't think it would have been amazing had he actually been in the pod. He would have been displaced somebody who needed to use it. He would never do that, though, because that's why he's a commander. And wait, we have him on our pod again and again. But the important point is the Fifth Circuit, which is basically led by a bunch of Sean Hannity's and Tucker Carlson's in robes, is choosing a course of action that allows SB8 to remain in effect potentially forever. Speaking of the evisceration of reproductive rights, and because this death spiral can't get any better,

we learned recently that Sarah Weddington, the lawyer who argued and won Roe v. Wade when she was just 26 years old and a recent graduate of the University of Texas' law school, has passed away. She was just 76 years old, but maybe graduate of the University of Texas's law school, has passed away. She was just 76 years old, but maybe she saw the writing on the wall as to the legacy of Roe and was like, you know what? I'm out. Just one speculation. Weddington, of course, is best known for successfully arguing Roe at the Supreme Court, but even this is a kind of complicated legacy. Norma Jean McCorvey, who was the woman who was anonymized as Jane Roe, later accused Weddington and her co-counsel, Linda Coffey, of manipulating her in the run-up to Roe in order to have a own explanation that because the Roe case was amended to be a class action, McCorvey's continued pregnancy was immaterial.

But this is all to say that like Roe, Weddington and her advocacy became embroiled in the larger controversy of the abortion debate. Still, it is an enormous achievement to successfully argue a landmark case before the Supreme Court when you are just three years out of law school. And so Sarah Weddington definitely made history. So as we basically promised on our Favorite Things episode, I feel like the beginning of this episode is kind of like Festivus airing of grievances because the next piece of news is kind of like in more get me away from these people vibes, Linda Greenhouse announced in her most recent column that her most recent column would be her last regular column. Greenhouse covered the court for The Times, and after ending her role in the news,

she started writing regular columns on the op-ed page. And her final column is no exception to the kind of wonderful writing that everyone came to associate with Linda Greenhouse and for which she won, you know, many different awards. Including a Pulitzer Prize. Including a Pulitzer Prize. So just one line that maybe we should highlight from the final column, and that is, one might suppose that the supercharged conservative majority might proceed with some caution, if not humility, before projecting its agenda on a wary country that never signed up for it.

Boom. Weird. It's also worth noting we're taping this on January 6th, which is the anniversary of the insurrection, a.k.a. the beer belly pushed. And it's kind of hard to think about Linda Greenhouse's last column, which really was about the court's role in safeguarding democracy and preserving the pathways to democratic participation without sort of linking it to what happened just a year ago on January 6. But because everything is truly, truly bad, and we hate it here, we also learned during the hiatus that John Roberts, the Chief Justice of the United States, is the only rated leader in our country who enjoys a majority approval rating from Republicans, Democrats, and Independents. He is literally the most popular federal official in the entire country.

What the actual? I mean, it's shocking, but there is a baseline problem here. Okay. Please do that part, Kate. What is the baseline problem? The company is poor. I mean, look, the fact that he outrates Joe Biden, Kamala Harris, I think is shocking. The fact that he outrates the median member of the Republican caucus of the United States House of Representatives, I think is actually probably justified. I think Kate's point is just generally public officials rate really low in these Q ratings when the polls are taken. So the fact that he is someone who seems to enjoy bipartisan

support is quite noteworthy. But I think my disbelief and incredulity is animated by the fact that John Roberts is not someone who should be beloved by those who enjoy the idea of a functioning democracy. John Roberts is the person who wrote the opinion striking down Section 5 of the Voting Rights Act, which required states who had a history of voting rights suppression and voting rights violations to pre-clear any changes to their voting policies with the Department of Justice. Boom, lawyered. Boom, lawyered. Did I do it right? You're really good. John Roberts is a person who, as a baby lawyer in the Department of Justice, was writing memos about how to eviscerate the protections of the Voting Rights Act. It's not just Shelby County and his work as a young lawyer,

but last term we talked obviously about Sam Alito and the Brnovich opinion, but like who gave Sam Alito the power to write the Brnovich opinion, right? And joined it in full. Who wrote the opinion declaring partisan gerrymandering non-justiciable? I mean... And assigned Kennedy, Citizens United, and joined that in full? This is the point. He may have sided with the liberals in June medical services and then like peeled off to write his own fakakta opinion that actually did undermine whole women's health versus Hellerstedt and destabilized abortion rights. But fine. He's done some things that might be viewed as like wobbly or like faux progressive, like the ACA decision, like characterizing that as a tax, for example. But this man has been the architect of dismantling the pathways of democracy.

Like, does anyone understand that part? He is not your friend, Democrats. It's the majority approval among Democrats that just really gets me. I don't understand that bit at all. And I wonder what is happening, if it's just a failure to cover the court in a kind of big picture way, a failure to kind of – what is going on? I bet it was the first impeachment. He basically handled that insane clown show of an impeachment as well as anybody could have. And maybe that's what's sticking in people's minds.

And then for the second clown show impeachment, he was like, you know what? He's not really the president of the United States right now and therefore my presence is not needed. And maybe that was just sort of viewed as an important sort of statesman-like gesture. I don't know. I feel like we're reaching here. Yeah, I mean, a little bit to argue against. Never let it be said that we did not try to play both sides of this. No, and in that spirit, to argue a little bit against what I just said about a baseline problem, the polling that we're talking about was not like brackets where you were like,

Kevin McCarthy or John Roberts, and he just happened to emerge more trusted than these other charlatans. It was actually like approval, like over half of Democrats approve of the job. What do you think of the Chief Justice? Chief Justice Roberts is doing. I think it's amazing. So yeah, it is really shocking. Okay. So to what do we attribute these responses beyond, you know, potentially the impeachments? And how do we correct the record? He's gotten a lot of good press over the last year for joining the liberals. I think joining the liberals on the SB8 cases, I think that probably played into a lot of this. He's been seen, I think, by the public as being moderate when in fact, this man is a dyed-in-the-wool conservative.

Right. And seen by the public through intermediaries translating the work of the court to the public. Yes. And that's an important thing to do. Not us, but other people. No, but other intermediaries. This is why you should recommend strict scrutiny to your friends. I'm also imagining John Roberts in that Mean Girls scene where he is standing on a platform

about to jump into a crowd of people saying, don't hate me because I'm popular. I can't help that I'm popular. I used to join the conservative majority, but now I hang with the liberals for institutional reasons. Just often enough to lull you into a sense of support and complacency. I love that he joins the liberals now that there are only three of them and it won't really matter. And it's utterly meaningless. He did do it a couple times before.

We should not overlook that. But anyway. Obviously. Census and DACA, right? Those are cases that are important and we've talked about obviously at great length. So it is not just the recent decisions. I think the SB8 stuff probably looms large in this recent polling. That's probably right. Okay. But before we leave the news topic, because it's the new year,

we did want to include some good news because there is some, not lots, but some out there. And one thing we wanted to highlight was that the FDA announced since we last recorded that it is lifting the in-person dispensing requirement for abortion pills, which clears the way for pills to be available at pharmacies and by mail. And this is a really important development. I honestly think this was because of our Favorite Things episode where we sang that new version of Santa Baby. No, but we asked for an IUD and not abortion pills. But we could have switched it out. Exactly. Exactly. It was put some Plan B under the tree. Birth control. Yeah. Put some Plan B under the tree. Yeah. Put some Plan B under the tree for me. We aren't the only ones who called for this.

Yes, there was our Favorite Things episode. But even before that, there was our girl, Sonia Sotomayor, who called for this, in her opinion, dissenting from the court's decision to allow the Trump administration to maintain the in-person dispensation requirement during the initial pre-vaccine period of the pandemic. So once again, the great dissenter being prescient and the FDA has taken her up. In her opinion in FDA versus ACOG, which was joined by Justice Kagan, she wrote that maintaining the FDA's in-person requirements for Mifepristone during the pandemic not only treats abortion exceptionally, it imposes an unnecessary, irrational, and unjustifiable undue burden on women seeking to exercise their right to choose. One can only hope that the government will reconsider and exhibit greater care and empathy for women seeking some measure of control over their health

and reproductive lives in these unsettling times. For now, I respectfully dissent. We know where that went. But this is all to say she was calling on the executive branch to act, and it has. So well played, Justice Sotomayor. So this development has the potential to allow abortion access, at least for very early pregnancies in a world in which states are eagerly attempting to restrict the procedure. But again, because everything is awful, some states like Texas are now attempting to limit medication abortion in addition to limiting or restricting the abortion procedure. So there will definitely be state-federal conflicts over the regulation of medication abortion. Kate, we had a nice way to end the news.

It was uplifting. We had a song. And then you just had to- People need to be on notice. States like Texas are already trying to counteract what the FDA has done. And so there will be legal fights to come. I mean, Texas is going to Texas. Yes.

So three quick additional notes before we go on to the argument previews. One is maybe a kind of an errata about something I said about Justice Gorsuch and SB8. No, it's not the part where I called him a sanctimonious bleep. It is the part where I suggested maybe Justice Alito assigned him the opinion because he thought Justice Gorsuch had a better chance of convincing the other justices than maybe Justice Alito or someone else did. You know, I neg Supreme Court justices on this podcast all the time. I don't know if I would go so far as to say any of them actually like Neil Gorsuch. And so I just want to take that suggestion back. And to the extent Justice Alito gave it to Neil Gorsuch,

I think it's because maybe he wanted to keep the Second Amendment decision for himself. So that was the correction I wanted to make. This erotic that you are making, this concession, as it were, that you were making actually is amazing in that it now shades two people. Right. Exactly. This is the errata that I aspire to on this podcast. New year, new me. This is the thing. Double the shade. Exactly. Second, I wanted to highlight a story that Liliana Segura of The Intercept, whose work we've previously highlighted on the podcast, did.

She wrote a piece that recounted how one of the families involved in the cases the Supreme Court heard at the end of December from Shin versus Ramirez and Shin versus Jones listened to the oral arguments in those cases. Specifically, the family of Barry Jones was listening to the arguments remotely. It's definitely worth checking out. Again, we've highlighted the human stakes of these cases. And this piece, I think, just really gets at the kind of shock that the families involved had upon hearing some of the arguments that might carry the day at the Supreme Court, such as the idea that innocence is not enough to free someone from prison.

Third, and finally, another piece of news, Judge Reed O'Connor, District Court of Texas, has invalidated the Navy's vaccination requirement. Because who doesn't love federal judges running the military? And public health policy. And public health policy. And public health policy. Boom, lawyered all over the place. Judge Reed O'Connor is the judge who is famous slash infamous for striking down the entire Affordable Care Act as well as the Indian Child Welfare Act. So definitely going to be watching this case to see what the Fifth Circuit does with this one.

I'm sure it will be very reasonable. I mean, Texas is going to Texas. Okay. It's not just all barbecue down there. All right. Let's go on to the argument previews. We are going to focus on the cases that are being argued in the first week of the January sitting, but we will also preview briefly some cases from the second week, including two that Leah is low-key obsessed with. They're not even ACA cases either. It's amazing. Her range is so broad. Okay, that's right. One is ACA. Okay. For the first week, let's maybe first talk about Johnson versus Arteaga-Martinez and Garland versus Gonzalez, which are two cases that

present two related questions. So the first question in these cases is whether individuals who are detained under a provision of immigration law are entitled to a bond hearing to determine whether they should continue to be detained after six months in detention. The statutory provision allows the attorney general to detain persons ordered removed if the AG finds they are either a risk to the community or unlikely to comply with an order of removal. And the question is, if that detention goes on for more than six months, do you need an immigration officer to make that determination afresh periodically? So in a case called Zadvidas v. Davis in 2001, the court interpreted the statute that authorizes this detention after the expiration of a removal period

to contain an implicit limitation so that detention after the removal period could only be as long as reasonably necessary. And the court in that case identified six months as a presumptively reasonable period. So DHS then issued regulations to implement that decision. And here the Third Circuit and the Ninth Circuit read the statute to impose on the government the burden to show that the detained individual continued to pose a risk by clear and convincing evidence. Okay, so in this case, the Department of Justice, and just a reminder, this is the Biden Department of Justice, is arguing that the rules set forth by the Third and Ninth Circuit just don't follow from the statute and further that they are inconsistent with recent immigration cases like Jennings v. Rodriguez and Guzman-Chavez. So they're basically saying, ah, you know, seems like you can detain somebody indefinitely. There's no basis in the statute for this six-month rule that the lower courts have announced. And I have to say, like,

beyond the harshness of the substantive position that the Biden Justice Department is advancing here, I found the tone of the brief way more aggressive than necessary. There's like this part where the brief says, you know, the rule that the Third and Ninth Circuit announced basically reads the statute in this way. And then they have this very kind of almost ostentatious like markup of the statute, like strikethroughs and underlines, a little bit like Scalia's dissent in Windsor, when he's like, if you just substitute in like marriage, then all of a sudden like marriage will be, anyway, I'm not suggesting the trajectory of this case is in any way parallel, but it was just such an over the top dissent. And there's something of that tone to this brief, which I found, again, in a Biden Justice Department filing, like really pretty off-putting.

Yeah. So just two thoughts on that section of the brief you highlighted, because reading the briefs, I was also struck by like what is happening here. wonders to what extent this tone and manner of brief writing is a reflection or product of the new tone and way the Supreme Court, at least some of its justices, sometimes write statutory interpretation cases, like there is only one right answer, and we're just going to ridicule the other side and try to demonstrate, you know, that we command the rules of grammar and statutory canons and that the Biden Justice Department is trying to reflect that or show that they're doing it. It's such a good point because I was like, it's kind of that it's pitched to Gorsuch, but you're right. The more precise way to say it is that it's mimicking Gorsuch in this completely unnecessary way. Totally agree. That's so well said. And then the second point is just when I saw this brief,

I looked at who the assistant solicitor generals were on the brief because, again, I was just somewhat taken aback. And you mentioned Justice Scalia's descent in Windsor. One of the assistant to the solicitor general is a former Scalia clerk, and the other is a former law clerk to Justice Thomas. I learned it from watching you, Dad. Do you remember that commercial? Kate has no idea what I'm talking about.

Do you know what I'm talking about? I don't know if I can place it offhand. It was like a say no to drugs commercial. Like when the kid's like, you know, the dad's like, I found these in your room, Timmy. Yes. I learned it from watching you, Dad. That's what I meant.

Anyway. Okay. So you're just laughing because I said it with such – Yeah, no. It was funny, even in this context without the additional cultural reference. You guys. God. But unlike Kate, I'm willing to admit when I don't know a reference.

Kate just continues to smile like, mm-hmm. I remember the 80s. It seemed familiar, but I definitely couldn't blaze it. Well, these guys have definitely, they've learned at the knee of the masters. The second question in the case is about what remedies a court can order if they find that the government is unlawfully implementing a statute. Specifically, the question is whether a court can enjoin the unlawful implementation of a statute and do so on a class-wide basis. So here the

applicants are saying it is unlawful to detain me for a prolonged period of time unless you conduct individualized bond hearings. And the question is whether a court can issue an injunction that prohibits the government from detaining people for prolonged periods absent bond hearings. This question is important because there are some issues or legal violations that just really can't be remedied unless you can get an injunction. So take the issue in this case, for example, whether the government can continue to detain you while you are challenging your removal order. The way removal orders work is you appear before an immigration judge, and then your case goes to the Board of Immigration Appeals, then the Attorney General, and then you can challenge it in a federal court of appeals. But that process is only about whether you are removable at all.

But the argument here is whether you can be detained while the government figures out whether you are removable. And if you can't file a separate case about that, that is whether you can be detained while the government figures out whether you are removable. And if you can't file a separate case about that, that is whether you can be detained, then that claim will never be heard in the removal proceeding and you wouldn't be able to vindicate it at all. The specific question here is whether you can get what's called a class-wide injunction, an injunction that applies not just to you, but also to people who are similarly situated to you. This is additionally important because some people in immigration proceedings are not

represented by counsel. This is also important because of the docket of the federal courts, the number of cases that they hear. If you make everyone file individual cases versus filing one case on behalf of a group of people, that could really change how quickly these issues get resolved. And these issues are important because the removal process can take a very long time. In some cases, it can even take years. One study found an average duration of a year and a half where someone sought a form of relief called withholding of removal. And someone

might pursue a withholding of removal in circumstances where they face persecution or torture in their home country. So for example, one plaintiff alleges that after they were removed to Mexico, police officers kidnapped, beat, and then sodomized him. And another alleges that he was tortured in the country to which he was removed due to his sexual orientation. So this issue, how long someone is detained during immigration proceedings, implicates a somewhat infamous confession of error in a previous case. In the post-Zadvides case, Damore v. Kim, the court upheld a mandatory detention for persons in removal proceedings with certain criminal convictions. And it did so in part because it

said detention would be brief. And it cited statistics from the government that even outlier cases would be concluded in about five months. Well, not so fast. The Solicitor General later filed a letter confessing an error on this point. So yikes. So these issues, whether someone has a right to a bond hearing or must remain in custody indefinitely, are additionally important because people aren't entitled to attorneys in immigration proceedings. And if they're detained, it might be hard to find a lawyer and hard to collect evidence to support their claim to immigration relief. So the stakes are really high. And mistakes are often made. Speaking of another place where mistakes are made,

another case that's being heard in the first week of the January sitting is Beckler v. Commissioner of Internal Revenue. And I'm so excited because it's a tax case. Yay. Yay. Is that convincing? Super. I'm so old. Not really. The issue in this scintillating case is, okay, it probably is super scintillating if you are a tax person. I am not. It's more like a civil procedure case than a tax case, I think. Still, the overlay of tax has immediately numbed me, right? So that's where I am. The issue in this case, as Leah points out, is not necessarily about the substantive provisions of the tax code, but rather whether the 30-day time limit to file a petition for review in the tax court from a decision of the Commissioner of Internal Revenue is what's called a jurisdictional

requirement or whether it is instead a claim processing requirement. And this distinction is meaningful because if a requirement is jurisdictional, it has to be strictly observed. If it is not jurisdictional, it can be waived. That is, the parties can agree that the court does not consider this rule a requirement, and you can be forgiven if you file late. The late Justice Ruth Bader Ginsburg, former professor of civil procedure and someone who didn't mind tax cases because she was married to a very famous tax lawyer, was really at the forefront and leading the charge behind the court's efforts to make sure that courts were not improperly labeling such requirements jurisdictional when, in fact,

they were more like claim processing requirements. And she would have been all over this case. So she's not here. So, Leah, what do you think this court, newly constituted as it were, will do with this absolutely riveting case? I mean, I think slash hope they will still follow those line of cases saying basically unless Congress clearly labels something as jurisdictional is a claims processing requirement. On the other hand, there are some rules that suggest filing limits and in particular, the time limits in which to file appeals might be more properly viewed as jurisdictional, even if they're not clearly labeled as such. So it's unclear which category this case is going to fall under. Another point, Leah, that we should raise, even though I do not find the substance of this case particularly riveting, I am really excited to see who's going to be arguing this case.

So who's stepping up to the podium? So it's not just who's stepping up to the podium, which I think is going to be Melissa Arbus Sherry of Latham and Watkins and formerly of the Solicitor General's Office. It's also the whole team of lawyers with Melissa on the brief. The lawyers on the brief also were Carolyn Flynn of Latham and Watkins and Amy Feinberg. So we really wanted to point out and celebrate this all-lady lawyer brief. Get it, ladies. And on a civil procedure and tax case. Yes. Somehow even more exciting.

The next case we wanted to preview is Gallardo v. Marsteller. And this is a case about whether the Federal Medicaid Act authorizes a state Medicaid program to recover reimbursement for Medicaid's payment of a beneficiary's past medical expenses by taking funds from the portion of a tort recovery where the recovery is at least in part for future medical expenses. So the facts of this case are totally tragic. They involve a young woman, Giannina Gallardo, who at the age of 13 was struck by a truck after she stepped off of her school bus. She sustained catastrophic injuries that left her incapacitated and requiring a lifetime of care. Her parents sued the people responsible. They sought compensation for future medical expenses, as well as lost earnings, pain and suffering, and past medical expenses that had been paid by Medicaid. So they settled the suit

for much less than they had initially sought. I think they had sued for over $20 million in damages and ended up settling for like $800,000. And then the state of Florida's Medicaid office was like, we would like some of that settlement. So they imposed a lien to reimburse the agency from portions of the settlement that represented both past and future medical expenses. Now, the Medicaid Act has a litany of provisions that restrict states' ability to take out liens or garnish recovery awards by Medicaid recipients.

There is an exception to those prohibitions, but it only allows a state to seek reimbursement of its past Medicaid payments to the extent a third party is legally liable to pay for care and services that were actually paid by Medicaid. So part of the issue in this case, as well as other related cases that this case will rely on, is how do you apportion what an award stands for? That is, how much of the $800,000 is for past expenses versus future ones versus pain and suffering? When, say, a state Medicaid agency might have paid an amount that is around the same amount or even more than what a party received in tort recovery, but the tort recovery represents more than just past medical expenses, also future

ones and pain and suffering. Here, at least the United States is supporting the Medicaid beneficiary, and it is the Florida Medicaid agency that continues to assert a claim to those settlement funds. So proud. Go Florida. As a Floridian? So proud. I don't even know if I can call myself a Floridian at this point. Can you ever escape it? No, you actually can't. As Florida's native son, Ryan Lochte would say, yeah. There's so many Florida native sons that you can really call upon. Florida man,

right? This is like Florida man running a Medicaid agency. When you say it like that, Leah. Okay. So let's move on to briefly talk about some of the cases from the second week. As we mentioned, Leah is obsessed with a couple of them. I'm going to start with one. I don't think actually, Leah, are you obsessed with this one? This is a pretty interesting one. It's interesting and important, but I just, I'm so over what this court is doing with the First Amendment. And I just know where these cases are going. There's no suspense. There's no suspense. Yeah, no. Okay. Right. Yeah. Yeah. We just skip right to June. Like why waste the time? No, I hear that. So, okay. So we'll be brief on this. But so basically this is a First Amendment challenge by a religious organization to the

city of Boston's denial of its application to fly its flag on a city flagpole. We should say the name. We should say the name. Okay. Sorry. Sorry. I guess we will say that. So, shirtless versus Boston, religious organization challenging some government action, first rule of Fight Club, religion wins. What more needs to be said? First rule first rule of Fight Club is religion wins. In some cases, what more needs to be said? First rule of First Amendment Fight Club. Especially challenging a blue state, right? Like, we know the rules of ecclesiastical whack-a-mole, and it's not hard, people.

We can end it here. Well, briefly, briefly, though, because it is an interesting case, we will just say the case has both government speech aspects and potentially forum analysis. So basically, you know, the city of Boston lets some private organizations briefly fly flags on one of its city flag poles and also like to use this plaza outside of City Hall. And the question basically is what rules constrain the government in its ability to control what flags will or will not be flown. Here you have a religious organization that was denied its right to fly this flag. The First Circuit said, well, those flags that the city is kind of flying,

those are government speech anyway. So there's kind of a question of whether this in fact is government speech, and if not, what kind of forum this flagpole is, and thus what rules govern what the city can do with respect to the flag. But none of that's going to matter because the people wanting to fly the flag are a religious group. Yes, but it's so interesting. What they're called is Camp Constitution, which doesn't sound like a religious organization,

but basically explains that its mission is to advance understanding of the country's Judeo-Christian heritage under the guise of the Constitution. It's like you can't make this up. Sam Alito is going to write an opinion that says every city in the country is required to display the camp constitution flag. I think it was on Constitution Day that they were actually seeking. Every child has to go to Constitution Camp. What's strange about this case, like we're now we're not talking a lot about the Biden

Justice Department. I mean, maybe it's not so strange, but they are on the side of camp constitution in this case. They say because they have an interest in the proper understanding of what government speech is and because the First Circuit had improperly concluded that the flags on this flagpole constituted government speech, it is weighing in on the side of camp constitution. But I mean, there's definitely some puzzling filings by DOJ in this setting. Do you think they would let me fly a flag that says Neil Gorsuch is a sanctimonious fuck? And if not why okay so given what you just said about how the other justices feel about Neil Gorsuch maybe Alita

would say that's okay just a question I'm still back on camp constitution like like are there you know is there a campsite is like are there there tents? Like, who goes to Camp Constitution? I want to know more. I think it's a camp of the mind. I'm not sure when it goes to Camp Constitution. Of the mind. I'm, like, this sounds very, do you remember the Heritage Foundation's, like, last year? Clerk boot camps, yeah. I think they're doing them again.

But there was, just last year, that whole thing where they were, like, defending the British monarchy. Oh, yeah. Like, in the Judeo-Christian over, like, that was, that was wackadoodle,archy. Oh, yeah. Like in the Judeo-Christian. Like that was wackadoodle too. Like this – it all is – this is insane. But okay. This is the timeline we're living in.

But actually one thing sort of connected to that that I wanted to flag also sort of odd about – You wanted to flag it? I wanted to flag it. We run this thought up the flagpole. The metaphorical flagpole was that the parties really disagree. The reason I was sort of struggling to even describe the policies because they're very different accounts of what the policy at issue even is. Boston's brief opens with this incredibly sharp first sentence, which is it is evident from petitioner's brief that their case depends on purported facts bearing little resemblance to the actual record. Like that is harsh in Supreme Court brief terms. That's like a Matt Damon, like, don't come to Southie unless you want to get

messed around with. Matt Damon wrote that brief. This is Boston. Yeah. They're like, do you know this is Boston? But it actually really did make me wonder. I mean, I haven't seen anything. I don't even know anecdotally if there's been an actual increase in these kind of like harsh claims of false like presentation of facts as between briefs. But it sort of anecdotally if there's been an actual increase in these kind of like harsh claims of false like presentation of facts as between briefs, but it sort of anecdotally feels to me as though there has been more of it. And it does make me wonder whether this sort of post-truth state of our political world is going to begin penetrating ordinary briefing at the Supreme Court more, which I mean, it definitely already has in some cases, right? Like I was just thinking when I was looking at these briefs about Alito in Holman's Health versus Hellerstedt, pressing this question of whether there was any reason to believe there was an actual link between

this restrictive Texas abortion law and half the clinics in the state closing overnight. I was like, well, anything could explain that. So I do think that's a little bit already entered the halls of One First Reap. The briefing here, it made me wonder. I just think that we could see more of that and how the court is going to navigate those kinds of competing factual claims. It's not just sort of, I guess, a departure from the whole idea of like, we have a set of universally accepted truths. It's also a departure, I think, from the norms of collegiality. I mean, I think most briefs aren't like, hey, you mother effing liar, what the fuck? Right? Which is kind of what that brief was like. It kind of says that. Yeah. Which makes me think like the misrepresentations must be pretty egregious. Yeah. Okay. So

one of the cases I am eagerly monitoring is Concepcion versus United States, which is an important resentencing case about the meaning of the First Step Act of 2018. Understanding the case requires a little bit more background. So regular listeners are familiar with the old 100 to 1 crack to powder sentencing framework, which originated in the Anti-Drug Abuse Act of 1986. Basically, Congress enacted very different sentencing regimes for people who were convicted of cocaine offenses involving crack than for people convicted of cocaine offenses involving powder cocaine. 100 grams of powder cocaine would get you the same sentence as one

gram of crack cocaine. So people with similar amounts of crack and powder cocaine received vastly different sentences. Congress changed that in the Fair Sentencing Act of 2010, but it did not make those changes retroactive. That is, it didn't fix the sentences of people who were sentenced under the old 100 to 1 disparity. So Congress fixed that in the Van Jones, Kim Kardashian, Ivanka Trump extravaganza that was the First Step Act of 2018. What a time to be alive when that was being passed. I mean, like, bipartisan, Van Jones, all kinds of social media involved, Kim Kardashian, Ivanka, Jared.

Like, that was a feast for Us Weekly. It was. And for Congress. And, you know, to her credit, Kim Kardashian has remained very interested in sentencing issues. It was in part due to her advocacy and lobbying on social media that the Colorado governor, you know, reduced the sentence of the trucker involved in the crash. He had received a sentence of over 100 years. And the governor commuted that sentence to, I think, 10. But anyway, so Kim was involved in the lobbying for the First Step Act of 2018, which made the amendments to the sentencing regime retroactive.

That is, they applied them to people who were previously sentenced. And what that act said is courts that imposed a sentence for a covered offense may impose a reduced sentence as if the Fair Sentencing Act of 2010 were in effect at the time the offense was committed. So the question in this case is basically, what does a resentencing proceeding under the First Step Act look like? at the time the offense was committed. So the question in this case is basically, what does a resentencing proceeding under the First Step Act look like? What should it look like? And the big overarching question is whether courts can or must take into account other developments in the law or the facts above and beyond the Fair Sentencing Act. So here's how

that cashed out in this case. Mr. Concepcion was sentenced as what's called a career offender because he had three prior convictions for violent felony. So he received more time. So here's the ACA adjacency that you alluded to. Exactly. So he received more time because of those prior convictions. But after he was originally sentenced, one of his prior convictions was vacated. And the Supreme Court has issued several decisions interpreting what a violent felony is, that is, what kinds of prior convictions qualify someone to be a career offender. And he argues those decisions and the fact that one of his convictions was vacated means he's not actually a career offender anymore.

And the government is like, well, the court doesn't really have to consider that. It just has to look at the statute amending the mandatory minimum for the cocaine offenses and say, assuming he's a career offender as he was sentenced at the time of his original sentencing, is his sentence appropriate? And because Mr. Concepcion was originally sentenced below the recommended guideline sentencing range, his sentence actually falls within the new amended guideline sentencing range. And so the courts below were like, yep, his sentence seems fine. So this question, what a resentencing proceeding under the First Step Act looks like, will be hugely important to so many cases. And it will really affect how much of a force the First Step Act looks like will be hugely important to so many cases, and it will really affect how much of a force the First Step Act is. And I am hoping against hope we

can get Kim Kardashian interested in a Supreme Court case. So I will be tweeting at her and Instagramming at her nonstop about this case until it is heard or decided or whatever, you know, I need to do. Because it's very important. Kim, you're even welcome to come on the podcast if you want to talk about Supreme Court and sentencing. Kate is just nodding her head like that would not actually be amazing. I'm aware of who, no, I think she's using her interest in law to the good. I'm totally supportive of that. I wouldn't know that much. I've never, for example, seen an episode of Keeping Up with the Kardashians. I don't know that much about her. But I do... I mean, I certainly am supportive of her criminal justice reform efforts.

Why? What? What? This is a show... You're not going to say I need to watch that show. I mean, I watch it for the family law. I just watch it because it's enjoyable. It is enjoyable. I mean, these are ladies who have managed to parlay whatever it is they do into a multimillion-dollar empire. And to which I say – Respect the hustle. Respect your hustle, ladies. I respect your momager, Kris Jenner.

Like, she is a genius. What I want is for someone to say to me, just like Kris Jenner does, you're doing great, sweetie. I'm going to call you and tell you that. You're doing great, sweetie. That's what I want to hear. If and when I receive tenure, I want the dean to call me and say, you're doing great. He doesn't have to say sweetie, because that would be a little weird,. Title IX. But just like a Kardashian allusion, right? As Kris Jenner would say, you're doing great.

He can just stop there. Dean Mark West, I hope you're listening. Or we, Melissa, you and I just need to get, somehow get Kris Jenner to record this video. She's too big for cameo.

That's the thing. Yeah. She's too big for cameo. Okay, what about a Kris Jenner impersonator? Would you accept that, Leah? Depends how good it was. Okay. I year, new standards. But props to Kim Kardashian. I mean, she's like studying for the bar. She passed the California baby bar. I don't think

she's going to law school. She's like, quote unquote, reading the law. So props to her for staying the course. And obviously, she studies poolside, as one does when you're preparing for the bar exam. I'm not mad at her. Nope. Anyway, speaking of people we're not mad at, another case that we should tell you about is Federal Election Commission versus Ted Cruz for Senate. So this is not a challenge brought by Ted Cruz, the person, the owner of a poodle named Snowflake. Shoo on that for a while. This is a challenge brought by Ted Cruz, the campaign. And the campaign is challenging the shards of the campaign finance

regulations that remain after the court has previously eviscerated them. So a federal law says that post-election contributions can repay up to $250,000 in personal loans that a candidate has made to his campaign. And a federal regulation says that a campaign may use pre-election funds to repay more than $250,000 in personal loans by a candidate if repayment occurs within 20 days of the election. This case came about when, the day before the general election, Ted Cruz loaned his campaign $260,000, $10,000 more than the maximum amount permitted under the law. After the election, the campaign had on hand about $2.38 million in pre-election

funds, but it didn't use the funds to repay Cruz's $250,000 loan to the campaign. Maybe if he hadn't loaned the campaign all that money, he could have flown Snowflake with him to Cancun. Just a thought. I wasn't going to mention Snowflake's boarding. I mean, do you remember how sad it was? Snowflake just looking out the window like, why is everyone so sad? When Ted Cruz went to Cancun during the ice storm. Yeah, let's remember. He fled the power outage of days and days and days in his state and apparently abandoned his little dog. And someone drove by his house and took a photograph and his dog, Snowflake, was just standing at the door looking desolate and so sad. Why does he call

the dog Snowflake? Let's unpack that. Aren't they always talking about how liberals and progressives are snowflakes, which suggests that maybe the dog, that doesn't seem like a loving name you give your dog if you're on the other hand talking about liberal snowflakes all the time no it doesn't great point i'm just saying now i'm additionally concerned for the dog justice for snowflake for this case justice for snowflake for snowflake um strict scrutiny as next friends to snowflake versus ted cruz exactly um we need some pro bono representation for snowflake to be um what's that thing where you want to become independent from your parents emancipation emancipation for snowflake emancipation for snowflake oh my god can you imagine if snowflake could hang out with Shadow and Cole and Stevie?

Snowflake's life would be vastly improved is all I'm saying. We'll adopt you, Snowflake. And if you want to – we'll call you Snowflake with love. Exactly. I love Snowflake. We love you, Snowflake. Anyway. So as our brief digression into Snowflake might suggest, for me, at least the more interesting question in the case is whether the campaign has standing to raise this challenge rather than whether the court will met a campaign finance regulation that it wasn't willing to strike down immediately, bracket the judicial campaign restrictions that prevented judicial candidates from personally soliciting campaign funds. But that case, I think, was the exception that isn't representative of this court's appetite for devouring campaign finance regulations.

Anyway, the standing challenge. Because judges are special. Exactly. Judge John Roberts wants everyone to know that. Judges are special snowflakes. Exactly. Anyway, so standing means a plaintiff who's challenging a law. Here, the campaign has to show that they were injured by the law. That is, they experienced some injury that is caused by the law. So one question is whether the campaign has standing to challenge the statute. That is,

whether the injuries are inflicted by the statute versus the regulation. The statute says you can't repay more than $250,000 with post-election contributions. And the government says there's no evidence that he did so or could have done so. The campaign reported less than $100,000 in post-election contributions. So it wasn't anywhere near the limit that is imposed by the statute versus the regulation. And the campaign responds, well, but the regulation, which implements the statute, prevents us from actually paying back the loan now. And the government says, but that only means you have standing to challenge the regulation rather than

the statute. Okay. The second argument is whether Cruz's injuries are caused by the regulation or whether they are self-inflicted because the campaign could have repaid the loan if it had acted within the 20 days. to generate a case. So Havens Realty is a case where some civil rights testers went out seeking information to buy homes. And when they uncovered information that sellers were providing different information to people of different races, they then filed suit alleging discrimination in violation of federal law. So here, the question is whether kind of the campaign caused or created its own injury. Here, the injury is ostensibly the inability to repay the $10,000. And that's not really just caused by the regulations, it's the campaign purposefully waited and didn't repay the loan with the money it had on hand in order to then create a situation where it couldn't repay the loan and could

challenge the regulation. So anyways, it's interesting in part because the conservative justices have often been what's called standing hawks, making it very difficult for plaintiffs to get into court and dismissing cases on the ground that the plaintiffs lack standing. Yet I wonder whether their enthusiasm for striking down campaign finance regulations might change things here. One to highlight, an amicus brief filed by friend of the pod, Mitch McConnell. The counsels of record on this brief are Don McGahn and Noel Francisco.

So really getting the whole band back together. It's so nice to see Don McGahn. He took a brief break from his life's work of dismantling campaign finance to defend a lawless president, but he's returned his first love. Exactly. He's back to his passion project. And this really is returning to his life's work, because the third section of this brief is captioned, this court should strike down what remains of the BICRA, the Bipartisan Campaign Reform Act. So it's like just do the whole thing. Do it now.

Speaking of not being able to wait. Just put it out of its misery space. Was it the first draft of the briefs said? They're like, that's too – that's a little strong. Yeah. Should we move on to some court culture just briefly? Okay. While everyone was preparing for New Year's Eve and Andy Cohen and Anderson Cooper were pre-gaming in anticipation of their CNN coverage of the ball drop,

the Chief Justice was hard at work releasing his year-end report on the state of the federal judiciary. The Chief Justice is not just first among equals at 1 First Street. He is also the chief administrator of the federal judiciary. And in that capacity, he issues every year an annual report on the state of the federal judiciary. And one would expect an annual report in a year like this one to maybe touch on some of the structural questions that have been circling around the court. There was that whole presidential commission on the Supreme Court, lots of talk about court reform. But the Chief Justice did not address that at all. Instead, he noted what the Wall Street Journal had covered in September, the scandal essentially, about I think over 100 federal judges who were discovered to have investments in companies that had actually appeared before them. And then he also highlighted something that Leah has written about extensively, the sort of workplace harassment that may occur within the federal judiciary.

So he addressed both of those issues, obviously very big issues, but probably not what people were expecting that he would address in his year-end report. But the TLDR of all of this was like, yes, there have been some violations of judicial ethics rules. Yes, there have been some situations where the federal judiciary as a workplace has not lived up to its ideals. But hey, Congress, if you were thinking of passing laws to deal with this, don't do that. We can handle this problem in-house. We got this. We got this. Because we've been doing it so well thus far.

Yeah. I mean, it was very polite. But hey, Congress, mind your business. I'm going to mind my business. And that's how he ushered in the new year. And even though it didn't mention the presidential commission on the Supreme Court or calls to reform the Supreme Court, of course, the general point is applicable to those calls as well. Yeah, Congress stay out. We can do our own. Hands off. Exactly. Hands off. You know, there are often calls for courts to change and attacks on the federal judiciary.

But like we got this, you know, courts handle their own business. He's like, have you all checked public approval ratings? I'm doing great. I got the upper hand here. People love me. People love me. This Q rating is stellar. You should have just appended that to the report. Just like a cover letter. Exactly.

Cover letter coming soon to a cameo near you. So weird, though. I mean, just like Congress Day out when at least one branch of Congress is in part responsible for the way the federal judiciary looks right now, or at least partially responsible. So I'm just going to put a pin in that. Anyway, that was New Year's Eve for the Chief Justice. Happy New Year, ladies. Happy New Year, indeed.

All right. I think that's a wrap on our first preview episode of 2022. We are definitely in for quite a year at the court, and we look forward to being in your ear holes, letting you know what's going on as the year progresses. So thanks to Melody Rowell. Thanks to Eddie Cooper for our music. Thank you so much to all of you for listening. We'll see you next time.

Happy New Year. Bye.