Strict Scrutiny - Latte Liberal

Episode Date: October 11, 2021

Melissa, Leah, and Kate recap the first week of the October sitting. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. So we are going to start with some news, and then we are going to spend most of our time

recapping some cases that were argued during the first week of the court's October sitting. We will briefly preview some upcoming cases, but we'll spend more time on those cases on our next episode, actually recapping them. And finally, we will end with some court culture. All right, so let's start with the news. There were a few grants that came out of the Long Conference that we didn't have a chance to cover last week because we had so much else to talk about.

So we did want to mention them today. The first case the court agreed to hear is a challenge by Senator Ted Cruz to a federal campaign finance rule that limits the repayment of candidate loans to their campaigns. Basically, there's a limit on how much you can be repaid if you loan your campaign money from donations made after an election. The federal government filed an appeal after a three-judge court invalidated the statutory prohibition on using these contributions to repay personal loans over $250,000. I mean, this Supreme Court basically never meets a campaign finance regulation it likes,

so I think we all know how this is going. Also, this is clearly a test case that Ted Cruz manufactured because he is jealous that McConnell has his name on a Supreme Court campaign finance case, and he wants Cruz on one, too. Do you think Ted Cruz will want to argue this one? Like, my name is on it. I argued it. All glory to Ted Cruz. I have a kind of dirty little secret, which is Cruz argued a few cases when I was clerking at the court. And like, he was really good. I'm sorry, guys. He's a good Supreme Court advocate. I feel embarrassed to have that position. I'm not denying that. I am just asking whether in his zeal to, again, get all glory to Ted Cruz,

he will both insist on having his name in the caption of the case as well as on the day call. That's such a flex, like Cruz control. I like that. Exactly. We'll see. We all look forward to that day. Another case that the court granted is a case about the proper interpretation of the First Step Act, the law that provides for resentencings for some people who were convicted of crack cocaine offenses before Congress reduced the penalties for those offenses.

The question in this case, Concepcion v. United States, is whether, at those resentencings, courts may or must consider intervening legal developments and factual developments, including changes in the sentencing guidelines. This was an issue that sort of is related to and First Step Act reduced the statutory mandatory minimum penalties for certain offenders, but the sentencing guidelines haven't been changed retroactively. So what a court could do or say is, well, yes, I no longer have to sentence you to this mandatory minimum, but the sentencing guidelines that were in place at the time of your sentencing actually called for you to receive that same sentence. So if courts can't consider the subsequent legal or factual developments, these resentencings will be much less significant than if the court were able to consider subsequent factual and legal

developments. And then another case the court took up is a major religion and speech case about whether the city of Boston can deny a religious organization's request to briefly display its flag, which contains a cross on a city flagpole. That case is called Shurtleff versus City of Boston. The lower courts here sided with the city. This means the religious organization is, in SCOTUS speak, on top. Get your minds out of the gutter. Meaning that they are the ones seeking review here, which almost surely means with this particular court that the religious plaintiffs will remain on top. So there we are. We wanted to flag one additional development, which is that the post-McGirt case,

Bossy. So McGirt is a case we've talked about at some length. So Bossy raises questions about McGirt's meaning and also its application. The Boss petition also pretty audaciously asked the court to just overrule McGirt outright because I guess Amy Coney Barrett. Anyway, that case was a subject of a stipulated dismissal, so will not be argued before the court.

But another post-McGirt case is, I would say, pretty will not be argued before the court. But another post-McGirt case is, I would say, pretty likely to end up before the court before long. Also of note, the orders list came out from the court's long conference, and Justice Sotomayor wrote several separate opinions or statements on that orders list that we wanted to highlight. So she specifically wrote in a capital case, Thomas v. Payne. In that case, the Court of Appeals had said that the defendant couldn't raise an argument that the lower court had granted habeas relief on, even though the state never made this argument that the habeas petitioner failed to present the argument to the state court. So she just highlighted the kind of unfairness of a court of appeals bringing up an argument that the state never made in its

defense. She also wrote separately in an Armed Career Criminal Act case about whether a court of appeals could say that its prior cases definitively rejected certain arguments, even though those arguments weren't raised or perhaps even addressed by the court. That case was Gann v. United States. She also wrote separately in a qualified immunity case, James v. Bartlett. The case asked the Supreme Court to review a grant of qualified immunity. And Justice Sotomayor says the court improperly resolved factual disputes in the course of granting qualified immunity. She's been on a tear lately.

She also gave a speech in which she exhorted the audience to not put their faith in the court and instead rely on other avenues for legal change. Like podcasts. No, I'm just kidding. Bethany thinks exactly what she's thinking of. Get you an iPhone and a microphone and tell the world what you think. Take to the airwaves, people. The revolution will be televised.

Make sure to get the merch going. In other news, Justice Breyer spoke at a Smithsonian event where he was interviewed by strict scrutiny guest Joan Biskupic. And interestingly, in multiple rounds of audience questions, individuals pressed Justice Breyer on his impending retirement, as in, when are you going to retire, Justice Breyer? And he said that he's happy to have them ask their questions and to speculate, but he would not respond because he doesn't want to make the news in terms of his retirement or anything associated with it. So plain coy, per usual. I do want to note something, which is that the fact that those questions were even posed means that Justice Breyer didn't try to exert any control over the questioning during this talk. And we should note this stands in real

contrast, or maybe Smithsonian said no, but I will say that it is clear to me that the Goodwill tour that Alito, Thomas, I believe it was called the Troll World Tour. Right. Let's call it what it was. I'm not sure about the Thomas or Barrett remarks, but certainly the Alito remarks, which remember, obviously, after some public outcry, were ultimately live streamed and did feature some questions at the end. But they were carefully curated questions posed by the moderator as opposed to just from members of the audience. And it sounds like that wasn't the case here. So, you know, props to Justice Breyer for not trying to keep a stranglehold on the format and props to people for raising the

question because it's on everyone's mind. Now, if only he wouldn't keep that stranglehold on his seat. That's the next step. Baby steps. Baby steps. All right. So in other kind of judicial nomination news, there was a hearing last week before the Senate Judiciary Committee in which ranking member Chuck Grassley was questioning Judge Lucy Coe, who's a nominee to the Ninth Circuit. Northern California in the house. That's right.

So cause for celebration for her nomination, less cause for celebrating Senator Grassley's line of questioning, right? At one point, he lauded. Wait, wait, can we just play? I don't think you should paraphrase it. Let's just play the clip. What you said about your Korean background reminds me a lot of what my daughter-in-law of 45 years has said. If I learned anything from Korean people, it's a hard work ethic and how you can make a lot out of nothing. So I congratulate you and your people.

So much cringe. So much cringe. I mean, I'm sure Judge Koh must have been cringing. I suspect Senator Grassley's daughter-in-law was cringing. We were all cringing. So let me try and frame this in a generous light. You know, I think he was trying to— You are a model minority, Judge Koh. Did I do it right? You have bootstraps, Judge Coe.

You have used them. I think, again, as someone who is the daughter of immigrants herself and a first-generation American, I've heard this species of laudatory comment in the past. And I think it often is animated by genuine admiration, a desire to be complimentary, but it is actually incredibly clumsy. And it's hard to be the person on the receiving end and not feel some kind of way about it. No one would ever say to Senator Grassley, like, you know, I really admire those Iowans for just making the most of things, like taking all that corn and making ethanol out of it. And just grow it so high. So high. How high? I mean, like, she has a remarkable career.

She's a graduate of Harvard Law School. She was a district court judge for many years. I mean, there's so many things you could congratulate her on. I mean, she does have a story that is sort of typically American. You know. Her parents came here from Korea. Her mother worked at an historically black university in Mississippi, Alcorn State. Very unusual. And she grew up in Mississippi. There's so much that could have been said about her story that was sort of uniquely American. And I think that's where he was going with this.

But it was just incredibly clumsy and probably very awkward for her. Yeah. I just cringed at the thought of her, you know, this very accomplished judge just being on the receiving end of these remarks. I do think there were likely, I mean, so Judge Coe's husband is the former justice of the California Supreme Court, Tino Cuellar. And so I was just waiting for a line of questioning about who washes the robes in your house. I would love to know that. And I was just glad that didn't happen.

So small mercies. All right. Some other breaking news in Texas. So in the case, United States versus Texas, we got a decision from the district court. Judge Pittman issued a 113 page opinion holding that the challenge can go forward and that the United States is entitled to an injunction blocking the Texas law. So what's important here? One, Judge Pittman's order enjoins the state courts and clerks from accepting or docketing cases or hearing them or anything in facilitating the enforcement of the law. It orders Texas to publish this preliminary injunction on all public-facing court websites

with a visible, easy-to-understand instruction that SB-8 lawsuits will not be accepted by the state courts. And that, to my mind, was incredibly interesting and I think reflects the degree to which a big part of the play here is really about sowing as much confusion as possible about what is permitted in Texas at any given time as much as anything else. So just creating a climate of confusion is part of the game. And by ordering the state to actually make clear to people in a public way that lawsuits will not be processed is, I think, a really interesting development. Although I think we've got to say, so it is now recording early Friday afternoon. This decision was late Wednesday night. In no uncertain terms, directed Texas to basically post a banner at the top of all of its court websites saying like, no, we're not docketing any SBA complaints. It's not there. Now, like I get that it takes a little bit of time to update a website.

But right now I see there's a banner at the top of the Texas courts dot gov website. But it's about COVID-19 in the Texas courts. And then there's some information about new administrative director and, you know, a new contract for a statewide uniform case management system. But conspicuously absent is the notice that Judge Pittman directed be posted. So I presume that is in the works. If not, I don't know. Maybe they're going to be back before Pittman asking why Texas is not actually complying with this injunction. So I think the opinion is really good.

You know, it's obviously long and methodical, but I think it's narrowly crafted in the following sense. You know, I think it really ties its conclusions about why the United States can bring this lawsuit and why the United States has standing to the fact that the state deliberately attempted to insulate itself from any judicial review here. And that just makes the case different than the possible world in which the United States just might be able to sue to challenge any state law where private citizens, you know, themselves could do so. This was a big theme in the oral argument. And I thought the DOJ lawyer Brian Netter was very effective at saying, you know, this is an action in equity. And so these kinds of considerations about other possible avenues are really relevant. And that very much distinguishes this extremely unusual case

from, you know, the mind run of cases in which you might be concerned about the federal government sort of big footing into court and having a chance to sort of challenge any state law. This is unique and thus should be treated differently from other similar actions and regarding other state statutes. And I think, you know, the district court was right to say the United States could bring this lawsuit. I think it's wonderful that we got this injunction. But that being said, you know, one implication of this case and this theory is, look, if there was a Republican president, you know, there would be no real possibility that any lawsuit, look, if there was a Republican president, there would be no real possibility that any lawsuit could be brought or would be brought to enjoin SB8, given that if it's only

the United States that can sue, whether these suits happen will just depend on who's at DOJ and who's in the White House. The opinion was super powerful. So it denied the state's request to stay or, you know, put on hold the injunction. And the district court wrote, you know, from the moment SB8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution, that other courts may find a way to avoid this conclusion is theirs to decide. This court will not sanction one more day of this offensive deprivation of such an important right. You know, that sounds like really, you know. Well, it's also very pointed. Like, I don't know what y'all are going to do, Fifth Circuit, I'm looking at you, but this can't stand here. Yeah. And again, like that is backed up by

hundreds of pages of like very extensive, careful legal analysis. And I think that tone is appropriate. Again, given some of the arguments that we were noting last week, Texas was making in this case, like there's no other law that has ever given anyone more judicial process than SB8. Like, come on, right? It's just an affront to the judicial process, the rule of law, logic, lawyering, etc. The opening of the opinion noted that the law was flagrantly unconstitutional. I take this as an obvious plea to everyone to purchase some strict scrutiny flagrantly unconstitutional merchandise. Alternatively, as a hat tip to Justice S purchase some strict scrutiny, flagrantly unconstitutional merchandise. Alternatively, as a hat tip to Justice Sotomayor's dissent in Whole Woman's Health versus

Jackson, both of these things are equally plausible. The footnotes in the opinion contain these really compelling, just horrific details about what is happening on the ground in Texas, like drone surveillance of abortion providers, people outfitting the fronts of doors with sound amplification devices so they could hear what's going on, video recording a protester delivering a port-a-potty to a clinic so he could monitor it, and then also accounts of the patients who are deprived of abortions burst into tears who, because of a waiting period of 24 hours, they went from being able to obtain an abortion at their mandatory counseling period to the next day not being able to obtain it. And it's just – it's really sad.

The opinion is pretty scathing throughout about what Texas has done here both in designing the law and so deliberately trying to evade judicial review, but did strike this note near the end that I thought was, you know, kind of interesting, which basically says, like, you know, let's take a step back. And what is going on here, which is state policymakers pursuing their policy agendas by limiting or eliminating constitutional rights and then intentionally removing legal remedies should worry all of us regardless of politics or ideology. And I took that as like an attempt to reason with the Fifth Circuit. Will it be successful? You know, hard to say, probably not. But I did think that that the opinion was meant both to be very focused on the federal case and the SB8, but also to make a broader point about this style of policy implementation,

that it's like an unbelievably dangerous and dystopic road to go down. And you would hope that people of multiple persuasions would be able to appreciate that. Or we could continue slouching toward dystopia. So the relevant question, I think, is what comes next? So we know that Texas has filed a notice of appeal, but it hasn't yet sought a request for a stay, at least at the time that we're recording, which is on Friday afternoon. Whatever panel gets this, are they going to stay the injunction or will this go on? So ideally, if a party requests a stay of a ruling that prevents flagrant violations of constitutional rights, they won't succeed. But we'll see. This is a different situation, I guess. There's also this oddity. Texas has been insisting that it had no power to enforce the law and will

now argue that it is being irreparably harmed since it cannot implement this law. So who knows? And ostensibly all of this means that all roads lead back to SCOTUS and the circuit justice who will be receiving whatever emergency appeal is none other than strict scrutiny fan boy and skincare model, Samuel Alito. Yes. Dewey skinned, moist moist skinned but thin skinned all right um do we know that abortion providers will actually be providing abortions during this period because there is that unusual quirk in the law that says even if there is an injunction if the injunction is later dismissed anything that happened during that interregnum period is fair game for being the subject of a lawsuit going

forward. Yeah, notwithstanding that provision of the law, at least some providers have resumed providing the care that they were providing prior to SB-8. So that's really striking. I don't think everyone is, but Whole Woman's Health has said they are. And I hadn't realized, but because they had been waiting for the possible issuance of an injunction, they had been going through the informed consent and 24-hour waiting period, like the first step of that, so women had been counseled so that they stood ready to actually receive care the next day, having received the required materials the previous day. Because like, look, it's not like Texas started regulating abortion with SB-8. Obviously there are tons of onerous requirements that were already in place in the

law. So at least Whole Woman's Health has said that it had been, you know, preparing in anticipation of a potential injunction. And so that definitely some women have received care since the issuance of the injunction that they would not have otherwise. Yeah. So people must be like just flooding them right now, just get in like before this window closes. These drone surveilled clinics like, oh, yeah. So maybe we can go on to some recaps and previews. This was the first week of the court's back to in-person arguments. So maybe some general thoughts about how that went. Last week, we had kind of poked

fun at the panel for this commemoration of Justice Thomas's 30 years on the court. The title of the panel was the Thomas Era Court. And maybe we were laughing a bit too soon. Because Justice Thomas asked the first question at every single argument during the first week of the court's sitting. And he asked the first question during what was supposed to be the unstructured argument time where any justice could intervene. So is he trying to tell us something? Are the other justices? Like, what is going on here? So two thoughts. One, it does seem as though there is some kind of understanding that he will now ask the first questions because there's like this, the first couple, you know, he sort of jumped in and it just seemed very organic. And then with the other,

with the arguments then Tuesday and Wednesday, it seemed like everyone was waiting for him to ask his question or questions. And it was like, okay, I guess there's some agreement now. So I just one other thought, which is that I was definitely part of that. I'm very glad he's talking chorus last term. I definitely said that on the podcast. And I still think it's good. He is asking questions and he asks good questions. But I do find the heaping of praise on him for starting to kind of get into the fray a little much like it's kind of like getting a cookie for doing your job. It's like your job. That's your job. It's not only getting a cookie for doing your job,

but it's like for stopping mocking other people for doing their job. Like for years, right? He basically was like, oral arguments are stupid, a waste of time. My colleagues just ask these questions to grandstand and, you know, what's the point? You know, it turns out he was wrong.

Oral argument is actually pretty helpful. Or he's right and he's like, I want to grandstand. I want to make a show. Yeah, so I guess congrats either way, Justice Thomas. But I do think that it seems like he's, I'm so curious if next week he does the same thing and if then

this is just the deal forever. Welcome to the Thomas Corps, ladies. He heard that we were mocking that last week, I think is the actual explanation. Sam Alito told him after his hate reading of the podcast Airwaves and Internet. What else on arguments? As we noted last week, Justice Kavanaugh participated remotely.

Although as far as I know, what did you imagine last week? I wanted a bodiless robe with the TV on top with Justice Kavanaugh on Zoom. That's what I wanted. Or a Cavapoo. Like a 1980s music video by a British new wave band or alternatively a Cavapoo. Oh, like an old fashioned, like big boxy TV. Yeah, yeah. Not like a flat screen, like an actual like box TV, like with like a wooden case. No, that would have been great. Huge missed opportunity. That did not happen. I don't even

know like if, if there was a monitor, there clearly wasn't a monitor with his face on it, but like, I don't know, was, was he just speaking through the microphone system at the court? I'm not sure. Anyway. Wouldn't know since they didn't give me a press pass despite my demand. So Adam Liptak was talking about the whole scene at 1 First Street. And I think one of the reasons why we obviously did not get a press pass is because they were social distancing people. So the press corps wasn't all in one spot as they had been in the pre-COVID era. They were all sort of dispersed throughout the entire gallery. So I think in order to social distance, they couldn't allow us to come because there would be too many people. And of course, everyone would want to sit next to us, completely confounding the whole purpose of social distancing.

So it was a service that we decided not to take advantage of the press pass opportunity. It is a huge upgrade for the press, to be scattered throughout the gallery because typically the press, when it used to be more than one person per outlet would go, I would sometimes go with ABC and you are just like crammed behind the columns, behind the curtains, way off to one side of the courtroom as a normal press pass holder. And they can actually see the faces of the justices this time. So that's a big upgrade. Anyway, so Kavanaugh's there, not via like robe and TV, but he tries to participate remotely. He initially tried to participate during the unstructured time where you just, you know, kind of jump in, which didn't work that well initially. They don't need a pipe to exercise control over this groundwater.

I think what you're asking or what she's asking you and pointing out is that it wouldn't work They don't need a pipe to exercise control over this groundwater. Mr. Coghlan? I think what you're asking, or what she's asking you and pointing out, is that it wouldn't work this way. I think the court has found it to apply equally with surface water in Tarrant. Mr. Coghlan? Oh, go ahead, Justice Kavanaugh. Justice Kavanaugh. This is every person who is on Zoom while there is an in-person meeting happening. Right. I felt for him. He clearly had really bad FOMO. You testified remotely before the House like two weeks. Was that last week? So you testified

before the House last week, Melissa. But I guess several of the other witnesses were also remote. But was it hard to get in? It was sort of half and half. And, you know, they were asking us questions. So there wasn't a situation where you're sort of jockeying to try and get in and ask a question yourself. Mostly, you're just waiting for the question. So you could rebut some insane line of argument that was factually untrue and historically inaccurate. A little bit of a different scene. Sort of. Kind of, sort of, yeah. It was noted, and Adam Liptak noted this in his reporting, that all of the justices were maskless except Justice Sotomayor. And I think this is likely because Justice Sotomayor has been since childhood a diabetic and chronic health condition. But here's my question. Like,

is it that hard to wear a mask? I mean, we teach in mass for hours on end. And like, you know, you're what I mean, like, is it that hard to wear a mask? Like you have a colleague with a chronic health condition, like just out of solidarity, like, I mean, this is where you're gonna make your stand about transparency. Like you can see my face? How about this? We'll mail them all strict scrutiny masks. Oh, my gosh, yes. Flagrantly unconstitutional masks. Exactly. Exactly. Anyway, another trend that I think was noticeable is that the unstructured time period for questioning seems to actually run long, or at least a lot longer than the initial instructions that had been provided suggested that it would be. And so we saw a lot of justices pass on the seriatim format in favor of the

unstructured time, which was more like what they had done before, but obviously it exceeded the time allotted in many cases. So now we will proceed to recaps, and we will recap the cases in order of importance and interest, which means we will start with Wooden v. United States. Melissa, I see your video has gone off once again. I felt bad last week. Leah, this isn't actually – you know that we were mostly joking, and we think this case is fun and interesting.

I don't want our viewers to think we actually are ACCA haters. We're not. I'm bullying. We're ACCA. They're trying to cancel ACCA and they are trying to cancel me. ACCA is the latest victim of cancel culture. Too woke. Honestly, wouldn't object to that.

Wouldn't object to that, wouldn't object to that. Anyways, so this is the case about ACCA, Armed Career Criminal Act, which imposes a 15-year mandatory minimum sentence on people with three or more convictions for certain felonies or drug offenses, provided that they were committed on different occasions. And the question is, what it means for an offense to be committed on different occasions? Does it mean distinct moments in time, which is largely what the government is arguing? Or does it mean considering all of the different circumstances that there was a distinct or different criminal event, which is the interpretation the defendant is arguing? The justices asked, unsurprisingly, a bunch of different hypotheticals that were designed to

tease out what exactly the parties were arguing for. And a few of the hypotheticals seem to exert a lot of pull in the argument with the justices referring back to them. So let's play one of the hypotheticals, which came from our boy, Sam. A streetlight goes out and a mugger says, this is a criminal opportunity. I can now mug people who walk by here at night. And that person does that at 10 o'clock at night, 11 o'clock at night, midnight. Is that one criminal opportunity or three? That led to this slightly odd sounding question from the chief justice. I want to go back to the dark night. The mood is not out, and anything the guy does that night is one episode. Then there was Justice Kagan. Suppose that there was a crime boss, and he was a good multitasking crime boss, and he had a few phones in front of him. He's sitting in his office

one day. And on one phone, he's arranging a sale of illegal drugs. And on another phone, he's ordering the killing of a competing crime boss. And on another phone, he's involved in an illegal gambling operation. And they're all going on very close in time to each other. Justice Breyer, for his part, was fixated on Jesse James. He kept bringing up like, what if Jesse James does this? What if Jesse James does that? You know, is that a different occasion? Anyways, unclear why that was the image in his mind. I did want to note the possibility, which I have never really seen on display in oral arguments in federal criminal cases, that Sam Alito might vote for the defendant in this case. It's not for sure,

and I think he ultimately won't. But he did ask a question that signaled his view that, at least under a very reasonable interpretation of the word occasion, the defendant didn't commit crimes on different occasions here. So let's say that there are three people in a car driving on a dark night out in the middle of nowhere, and they see a hitchhiker. They're kind-hearted people. They stop to pick up the hitchhiker. The hitchhiker pulls the gun, points the gun at the first person in the car, and says, give me your money. Person gives him the money. And then he says, walk off. And so he's done with that person.

Then he robs the second one, same thing, walk off, robs the third one, walk off. Is that one occasion or two occasions? He was, however, also aggressively questioning the defendant's counsel to try to show that the defendant's proposed rule was unworkable. So now that I think more about it, I think he'll probably stay true to type. But interestingly, what really seemed to move him was a mode of statutory interpretation that is supposed to be kind of out of vogue, namely legislative history and legislative context. Justice Alito kept noting that Congress added this language in the ACCA, the requirement that offenses be committed on different occasions, after the government had conceded error in a case called Petty. And in that case, the defendant had committed a robbery on multiple people at the same bank,

and those robberies had happened at different moments in time. So under the government's view, that should have been different occasions. But again, government conceded error in that case, and Congress adopted this language largely to codify the government's concession of error. That is to adopt the view that robbing a bunch of people at the same bank in quick succession isn't actually different occasions. So my overall impression is that there are five votes for the defendant based largely on the plain meaning and common usage of the word occasion that we alluded to last week, namely occasion just means something like an event. That is, you consider the time, but you also consider like various goings on. Justice Gorsuch, I'm just

going to predict now, is going to write a pretty annoying concurrence about the rule of lenity. Wait, pretty annoying or super annoying? That remains to be seen. That remains to be seen, right? There are different registers. There are different registers and might try to tie it to this administrative law doctrine that we won't get into now. on Vox of Justice Gorsuch, just about common threads in the justices' jurisprudence and just a very strong kind of pro-chaos, anti-government vibe that is worth checking out. It was a really good piece. I got to flag one thing, which is that he does not talk at all, I don't think, about Justice Gorsuch's mother, Anne Gorsuch Burford, who is a fascinating figure

in her own right. And I've told you guys guys I sort of sometimes play with the idea of really writing something about her. I really feel like maybe I should do that. But I think that there's an interesting psychodrama to be written about the relationship between his anti-administrativist and kind of just chaos agent approach. Oh my gosh, this is like Hamlet. He's Hamlet. And his mother, who had been the EPA administrator under Reagan and involved intimately in a number of major disputes, some of which have resulted in big Supreme Court cases like Morrison v. Olson and others. Well, she was also, I think, unceremoniously dismissed from her position. Well, I think she did technically resign as part of this agreement that was related to this oversight investigation that was this dispute that ultimately led to Ted Olson testifying before Congress in the case that became Morrison v. Olson.

So the Morrison v. Olson case grows initially out of this dispute at the EPA involving Ann Gorsuch Burford. So there's just like, there's a lot there, and probably too much for a profile like Ian was doing, but there's more to be written about it. I will avenge my mother. I will take down the administrative state. See, I told you, I'm for a criminal act, super fascinating. We're discussing

Hamlet, Justice Gorsuch's biography. It brings in all of the interesting things. But think Hamlet, justice scores such as biography. It brings in all of the interesting things. The justice who is actually good for criminal justice on the Supreme Court, Justice Sotomayor, asked an interesting question that I wanted to flag here. So let's play that clip. So I have a question. Have you given, and no one's actually addressed this at all or alluded to it, is this so vague and so incapable of rational application? Because even the government's proposed test suffers from its own set of vagueness, what happens when things overlap, okay,

and how do you determine when the last element was committed, because a kidnapping lasts until someone flees. So does that mean if you kidnap someone and rape them and do all these other things, is that one episode or not? I think they would say not, but I'm not sure why. But having said that, is there any answer to my vagueness point? What I think she is getting at is the justices are really struggling to come up with what they view as an administrable rule to determine what a different occasion is. So

Justice Alito noted to this a few different times saying, I don't know what a criminal opportunity is. I don't know what an occasion is. And in previous Armed Crime Criminal Act cases, the court has struggled to define what violent felonies are, leading them to ultimately declare that provision, or at least a part of it, unconstitutionally void for vagueness. That is, it's so clear, it deprives people of the notice to know what's actually criminalized. And she's floating that possibility here, that is, maybe this provision is just so unclear, given the party's divergent interpretations and all these strange hypotheticals that seem to generate conflicting answers. Maybe this provision might, too, go the way of void for vagueness. One totally non-substantive point I wanted to make about the argument.

Do you notice that weird moment where Justice Thomas asks a question? What if they said, look, it's time. We've got lots of time. We can go to Starbucks, grab a cup of coffee or something like that. Actually, Dunkin' Donut or get a cup of coffee or something. It's like, I'm a man of the people. I've never even heard of Starbucks. It was so interesting. I wonder if he was like, oh, man, you like put yourself out there. You ask questions. You could reveal that like you occasionally like a pumpkin spice latte. And then everyone's going to know. Latte liberal.

Latte liberal. Maybe he likes the new like apple spice latte, right? That's the new one. I didn't even know that was out there. I bet he gets like oat milk in it, all the stuff progressives like. Woke milk, all of it. Woke milk, half-calf, all of the things. Extra foam.

Extra foam, slow drip, cold brew, all the things. And then he's like, I mean, just a plain black coffee from Dunkin'. I mean Dunkin', just a plain black coffee from Dunkin'. Okay. Let's talk a little bit about Hemphill v. New York. So this is another criminal law case, but it's about the Confrontation Clause of the Sixth Amendment. And the issue here that the court is to determine

is whether the Confrontation Clause requires cross-examination of testimonial hearsay, even where a defendant, quote-unquote, opens the door to that hearsay. So the defendant here, Daryl Hemphill, argues that evidence admitted at his trial included portions of a third party's plea allocution that contained some testimonial hearsay that violated the Sixth Amendment. He was convicted of second-degree murder and then sentenced to a prison term of 25 years. So the question here is whether or not the admission of that plea allocution evidence violated his rights under the Confrontation Clause.

This is the first Confrontation Clause case that the new court is hearing, and it's not really about the substance of the confrontation clause in this sense. It's not about what kind of testimony or evidence is subject to the confrontation clause, what kind of evidence or witnesses a defendant must be able to confront under the Sixth Amendment. Here, the state is taking as a given that if it had just sought to introduce the allocution as part of its case in chief, that would violate the Confrontation Clause. And so the question here is, again, whether a defendant can waive a Confrontation Clause objection when they open the door to some evidence. So, you know, we're not saying this isn't an important case.

I mean, it obviously could be very important to the scope of confrontation clause protections, but it is to say that it is a different kind of case than the ones the court has heard in the past. So unclear whether it will tell us much about whether the new justices on the court are more in the mold of someone like Justice Scalia in terms of their views of the confrontation clause or someone who's more like Justice Kennedy, who had a very different take on the confrontation clause. So Jeff Fisher argued this case for Hemphill, and he argued expertly, as he always does, and I think he's going to win. He did a particularly good job sorting out some of the questions about completeness. That is, what about if a defendant introduces only a misleading part of a statement? Can't the state respond in kind? And he basically said, look, that would generate separate objections, not the ones here. There was no question about whether the defendant had tried to introduce a misleading or incomplete portion of any statement here.

We'll also briefly mention Brown v. Davenport, which is a habeas case. It featured, we believe, the first ever Arab-American Muslim woman arguing at the Supreme Court, Fadwa Hamoud, the Michigan Solicitor General. The habeas petitioner, as we noted in our last episode, was also represented by a woman of color, Tasha Bahaal from WilmerHale. The question in this case is whether the harmlessness determination is subject to adpodeference. If that sounds like a lot of words, it basically works as follows. As we explained last episode, there's a harmless error rule that says if some evidence was admitted in error in violation of your constitutional rights, a court can still uphold your conviction if it concludes that the introduction of the evidence was harmless. That is, it probably

didn't affect the outcome of your case. But a federal statute, EDPA, the Anti-Terrorism and Effective Death Penalty Act, says that federal courts can grant writs of habeas corpus, freeing people from state court convictions, only if the state court opinions and determinations were an unreasonable application of clearly established Supreme Court law. So the question in this case is, again, whether a defendant has to show that the state court's harmlessness determination was objectively unreasonable, or whether instead a defendant can prevail by satisfying the habeas-specific harmless error rule, which the Supreme Court had said requires a defendant to show some reasonable possibility

that the error had a substantial or injurious effect on the verdict. Some of the Supreme Court's prior cases, in particular Ayala v. Davis and Frye, had suggested that if habeas petitioners satisfy the Brecht standard, there's no problem. That is, they can get habeas relief. But in another case, Mitchell v. Esparza, the Supreme Court had performed what looked like an EDPA analysis of the state court's harmless error determination. That is, asking whether the state court's determination that an error wasn't harmless was an objectively unreasonable analysis of federal law. So the question is whether you need to do both of these inquiries, whether you can just do one, particularly Brecht, and what the rules are. In this argument, Justice Breyer asked a question that I felt was personally directed at me. So not to make this all about me, but let's play that clip here.

My difficulty with this case is I believe that you understand it, and I believe that the lawyers in front of me understand it, and my colleagues spent time on it. So did I. And I have a terrible time understanding where all these different standards are and how they fit together. And I doubt that a lot of habeas judges will understand it either. Maybe they will, but many will not, no matter what we say. So I began to think of how could we deal with this? What I would like to say about this is, if you're having such a hard time with habeas cases, Steve, maybe there are some other things you could do with your time. Justice Kagan was most clearly in the habeas petitioner's camp. It's clear that the Chief Justice and Justice Alito are not. They were trying to differentiate the EDPA harmless error

inquiry as about the state court decision and what's in the record and then said, well, Brecht, that harmless error standard is about the habeas court's own assessment of the jury. I think this is a completely artificial distinction. In both cases, you're asking what the effect on the jury is. That is, was the state court correct to conclude or unreasonable to conclude there was no effect on the jury and also whether the habeas court thinks there's an effect on the jury, but that seems to be the direction they will go. Okay. So the next case we wanted to debrief was United States versus Abu Zubaydah, whose name the chief justice seems to believe is pronounced. Zubaydu. I thought he practiced the pronunciation of party names before oral argument. And Zubaydah is not a name that should be unfamiliar. It's sort of been in the ether for 20 years now.

And yet he seemed never to have heard the name before. It's kind of weird. So this is a state secrets privilege case. So Zubaydah is seeking to subpoena two contractors allegedly involved in his torture while in CIA detention. The question here is really about whether this information is privileged and how, if at all, this case could proceed in light of the government's claim of the state secret's privilege. So the lower court set suggested that the existence of a CIA facility in Poland was not privileged since it had been widely reported in the media and also confirmed by Poland's president, but that the identities of Polish citizens working there and operational details were secret. The district court had found that there was simply too great a risk of disclosing secrets because the privileged and non-privileged information cannot be separated. But the Ninth Circuit disagreed and said, look, some of this information isn't properly understood as a state secret. So like interrogation techniques, which the United States has acknowledged

and the details of Abu Zubaydah's treatment, and said that it should be possible to disentangle privilege from non-privilege information, but that if it wasn't, then discovery could be quashed. But the United States' position is that the proceedings can't move forward at all. So there was this long exchange that raised a lot of eyebrows about habeas. So this was based on a question that I want to come back to about whether Zubaydah could testify himself, right, about his treatment rather than deposing these contractors about their treatment. So let's play that clip here. You don't want that.

No, we don't need that. All you want is to know what happened. We want the testimony. We want, exactly. If it's exactly, why don't you ask Mr. Zubeda? Why doesn't he testify? Why doesn't Mr. Zubeda? He was there. Why doesn't he say this is what happened? And they won't deny it. I mean, I don't think if he's telling the truth.

You're talking about Mitchell or Jessen. No, I'm not. I'm saying the person who was there was, I don't know if he's your client. Isn't he your client? His name is on this thing. Abu Zubaydah. Yes. Abu Zubaydah cannot testify. Why not?

Because he is being held incommunicado. He has been held in Guantanamo. Why? Why? I mean, I'm not sure this is relevant, but, I mean, in Hamdi, we said you could hold people in Guantanamo. The words were active combat operations against Taliban fighters apparently are going on in Afghanistan. Well, they're not anymore. So why is he there? That's a question to put to the government. We don't know the answer. I mean, have you filed a habeas or something? Get him out? There's been

a habeas proceeding pending in D.C. for the last 14 years. There's been no action. They don't decide? I'm sorry? I mean, you just let it sit there. All right. I guess this is not relevant, but I'm just curious. Personally, I'm not handling that. I mean, guys, what was your response to this? Have you filed a habeas or something? That's going on a shirt. Have you filed a habeas or something? I mean, it was interesting to me because it was like, really, you think this guy's lawyers never thought to file a habeas petition? And he wasn't, Klein, his lawyer was not indignant, actually, at all in a way that I found really pretty remarkable. He wasn't like, are you out of your goddamn mind? Have you filed a habeas petition? Although I guess he's not handling the habeas litigation, but it was very sitting in the D.C. Circuit for

so long because, of course, the Supreme Court has been repeatedly put on notice about what the D.C. Circuit is doing in Guantanamo litigation. And specifically, the D.C. Circuit has basically rendered the protections in Boumediene, the ability to file a habeas petition, basically a nullity by making it impossible for habeas petitioners to succeed, by broadly interpreting the scope of the government's detention authority, by erecting a variety of procedural obstacles for habeas petitioners to successfully challenge their detentions, etc. And, you know, the Supreme Court hasn't decided a single Guantanamo case since deciding Boumediene. It has only taken one Guantanamo case in Cayemba, which was later mooted before the Supreme Court could decide it.

So Boumediene, for people who don't know, is 2008. Like this is many, many years. And Cayemba, you know, I don't remember actually the specific details of the issue in the case. But I do remember that the executive branch clearly mooted the case by transferring the individuals. So the issue in that case is whether courts had the authority to release detainees held at Guantanamo Bay. The D.C. Circuit had said they did not, which, of course, would have made all of the habeas proceedings just endless procedure with no point. And so, again, they know they know what the D what the DC circuit is doing with these habeas cases. They've just chosen not to do anything about it. And it was really, yeah, I mean, they know,

and they've chosen not to do anything about it. But it also sounds like maybe they once knew, but like, they've kind of just forgotten. They're like, you know, where do we land on that again, that Guantanamo issue? I don't came up, but I can't remember what, yeah. It's astonishing in part because the DC Circuit has been so openly hostile to and openly challenging the Supreme Court's decision in Boumediene. You had Judge Silverman on the DC Circuit write in an opinion, just come out and write in an opinion that none of his colleagues would grant a habeas petition if they even believe it somewhat likely that a petitioner is affiliated with or supports al-Qaeda. You have Judge Randolph writing speeches and posts in the National Review calling Boumediene a legal mess.

You have the D.C. Circuit most recently in Al-Haila in an opinion written by Judge Naomi Rao saying that Guantanamo detainees lack constitutional rights under the due process clause. Like all of this has just been happening openly and in their faces. And the idea that they can just tune this out and not care is really astonishing to me. So then there was this specific point that several justices raised about whether maybe a neat solution to all of this, we don't have to worry about these contractors and state secrets issues if Zubaydah himself is just available to testify. And I have to say, I don't really know what, I don't think Zubaydah's lawyers were asking for that. They certainly weren't asking the Supreme

Court for that. I'm not sure they ever asked for that. It just struck me as the justices totally freelancing and just saying, we have an idea. Nobody may want this, but we're going to confuse everyone with this cockamamie solution, which is we're going to make you all

decide if it's even possible for Zubaydah personally to testify about his torture. And it just like things kind of spiraled into confusion at that point, because again, that wasn't an issue in the case. It's just something that justices decided was a good idea to talk about. It just struck me as the justices revealing themselves to be dangerously out of touch, both with the background conditions involving Guantanamo litigation broadly, and with the specific issues and proceedings in this case in particular. But there was this weird moment in, so acting Solicitor General Brian Fletcher

was sort of, you know, dealing with this unexpected line of questions about, you know, whether Zubaydah could be made available to testify. And then Alito got like weirdly existential at the end. I didn't know what to make of this point. And when she basically presses Fletcher about like, you know, the nature of existence. Mr. Fletcher, you are here representing the government of the United States in a certain capacity. What do you understand to be the scope of your authority as you stand before us here? To represent the legal position of the United States, but in doing that, it's important to me, as it always is, to make sure that I'm representing my clients with full consultation

of what's being put before them. I understand the question. To represent the interests of the United States with respect to what? With respect to all matters. Here, the matters directly relevant are. With respect to all matters? I thought it would be with respect to this litigation. Correct.

I'm sorry, Justice Leo. That's a better way to put it. And because this is not an issue that has been in this litigation up until now, I'm not prepared to make representations for the United States, especially on matters of national security. Justice Gorsuch, I understand your question. We'd be happy to respond. And Fletcher, I thought, handled it well. But it was just like a very, very strange confrontational moment, even for Alito. On this specific question that was involved in the exchange about whether the government

had authority to continue to detain people at Guantanamo, Justice Kavanaugh jumped in at the very end of the government's argument, basically to rehabilitate the court on which he previously sat and, you know, their decisions kind of giving the government the sweeping authority. So let's play that clip here. Thank you. Can I ask one question? Justice Kavanaugh. Mr. Fletcher, following up on Justice Breyer's question, is the United States still engaged in hostilities for purposes of the AUMF against al-Qaeda and related terrorist organizations?

That is the government's position, that notwithstanding the withdrawal of troops from Afghanistan, we continue to be engaged in hostilities with al-Qaeda, and therefore that detention under law of war remains proper. Thank you. Thank you, counsel. Counsel, the case is submitted. Okay. So we have a couple of cases that we want to preview that are coming up in the next sitting.

So we'll go through these pretty quickly, but we will come back to them at a later time when we recap them. And so the first one we want to highlight is Cameron v. EMW Women's Surgical Center. And this case is going to be argued the second week in October. But in some ways, it is a harbinger of things to come. And it may give us an indication of how willing the court is to bend the ordinary rules in order to rule against abortion rights. And so the first thing to note is this case involves abortion, but it's not one of the frontline abortion cases that everyone's been talking about.

It's not like the Texas SB-8 case, and it's not like Dobbs. This case is really a procedural issue. But to understand what's going on here, you have to know that the underlying challenge is to a Kentucky abortion restriction that prohibits the standard second trimester abortion method. The complaint named four defendants, the Kentucky AG, the Kentucky Secretary for Health and Family Services, the Director of the Kentucky Board of Medical Licensure, and the Commonwealth Attorney for the 30th Judicial Circuit of Kentucky. The Attorney General filed a response arguing that he lacked enforcement authority under the law and therefore was not a proper defendant.

A few days later, the Attorney General filed a proposed agreed order and stipulation of dismissal, basically an order dismissing the attorney general from the case. In exchange for the plaintiffs consenting to the order dismissing the attorney general, the attorney general in his official capacity agreed that any final judgment in this action will be binding on the office of the attorney general. So there's a trial. The district court issues a preliminary injunction. The secretary appeals.

The case is briefed. After briefing, but before argument, a new attorney general is elected in Kentucky, and it is none other than Mitch McConnell protege Daniel Cameron. And Daniel Cameron wants to argue that the abortion providers lack standing. Note, the secretary had raised this argument at the end of the trial, and the district court had said that given the state of the law, you should have made this argument a long time ago. After the Court of Appeals affirmed the district court's decision, finding that the secretary had waived the standing argument, Daniel Cameron, the attorney general, files a motion to intervene as a party. And note that some of the lawyers in the attorney general's office who want to intervene appeared as lawyers for the secretary. So again, this is really the legal mess that Judge Silberman had earlier referred to. It might not be Bumitadeen, but it might be this. So the panel denied the motion

to intervene and dismissed the petition for rehearing on Bonk. And the question the Attorney General Cameron is asking the court to decide here is whether he should be permitted to intervene. So obviously a procedural issue, but there's this whole substantive underlying issue here. And again, the question is going to be whether the court is willing to bend standard procedural rules in order to rule against abortion. So where should we start with the problems in this argument, Leah? I mean, I think the place to start is just on the issue of waiver. That is, in the ordinary course, in normal litigation, when an office of the state waives an argument, they are bound by that waiver. Here, the attorney general said,

I agree to be bound by any judgment. And when they say, we won't make the argument that we won't be bound by a future judgment from this court, they're held to that. You can't just come back and be like, JK, fingers crossed. But in this case, I have the sneaking suspicion that Justice Alito's opinion, maybe for the court or not, will say something like, OK, yes, those are the legal rules, but abortion. established rule about waiver, that is parties don't get to basically get a backseize on an agreement they made in litigation, just shows how far the court will go in twisting the procedural rules in order to rule against abortion rights. And just to give you some sense about how this rule of waiver usually works, it actually came up in a separate argument from this past week in Brown v. Davenport. So here is Justice Barrett putting this question to the Michigan Solicitor General's office,

again, just taking as a given that courts usually enforce parties' waivers, their agreements on certain issues. And Ms. Amud, can I ask you, what was the last adjudication on the merits? Why shouldn't we, I mean, it seemed to me that below and saying that the Michigan Supreme Court's probably was, you basically conceded that it was, but now you're saying that after your brief says that after considered reflection, you think it was the Court of Appeals. Why shouldn't we hold you to your earlier concession? It seems like the AG has an extremely weak argument on the waiver point. There's, you know, at least two distinct fatal flaws with the attorney general's position, right?

One of which is that there's just like a clear lack of jurisdiction, right? You have 30 days to appeal a district court decision. The attorney general tried to intervene well after the Court of Appeals had decided the case. There's a federal court. What's a little jurisdiction between friends, Kate? You know, I did a corpus linguistics analysis of the phrase case and controversies, and it says I can rule against abortion rights whenever I want. Boom. Sam's definitely going to cite that.

But there actually are. There's a good amicus brief by, you know, an actual friend of the pod, Steve Vladek, and some other Fed court scholars that walk through, again, the number of distinct jurisdictional problems the court would need to overlook in order to reach the merits here. And if it did, a majority of the court rejected the standing argument that he's trying to intervene so he gets to make in June Medical, right? That's what he is trying to relitigate, this idea that abortion providers can't challenge restrictions on abortion providers, that the people, the only proper plaintiffs are women seeking abortions. And it's a loser of a merits argument, even if you get over all of these threshold obstacles. And yet, I feel like he's going to have at least one vote and probably significantly more than that. We did want to note that EMW Medical Center

will be represented before the court by Alexa Colby Molinas of the ACLU's Reproductive Freedom Project. So we are excited to listen to the argument for that reason. Another case that will be argued is Thompson v. Clark. We'll talk more about this case later, but basically the question is whether a party can bring a civil rights action in federal court challenging their unlawful arrest or prosecution after the state court has dismissed the case against them, but without affirmatively indicating that they were innocent

or might be innocent of the crime they were initially charged with. Because we're running short on time, we will briefly mention that there's also going to be an argument next week in United States versus Tsarnaev, who's one of the Boston Marathon bombers. The issue in that case is whether the Court of Appeals was wrong to conclude that his capital sentence, so he had initially been sentenced to death, and then the First Circuit vacated that sentence on the grounds that the district court erred in not asking prospective jurors about the kind of pretrial media coverage of both the bombing and, I guess, the manhunt that ensued. So whatever media coverage they consumed about his case prior to being seated as jurors.

And then there's a separate question regarding the district court's exclusion of evidence that Tsarnaev's older brother had been involved in different crimes two years prior to the offenses for which Tsarnaev was convicted. Just to add another wrinkle to this or to make clear the stakes of this case, regardless of how the court rules here, the outcome will be relevant to other cases, including the case of Derek Chauvin, who was the officer charged with killing and convicted of killing George Floyd. Mr. Chauvin has raised as part of his appeal the fact that many of the jurors had been exposed to a sort of robust diet of news coverage about the killing in advance of their service on the jury. So just to end with court culture, because again, our episode last week went long, we did want to provide a brief overview of this sitting, at least how it relates to last term with respect to the representation of different communities at the podium. So Kimberly Robinson at Bloomberg has provided overviews of

the court's last two terms as far as the gender diversity. So in OT 2019, she found that women argued 20 times or 13% of the time at the podium. During October term 2020, she found that men outnumbered women advocates 125 to 28, or that, or that women argued 18 percent of the time. The numbers for lawyers of color were even worse, anywhere from between two to six lawyers in any given sitting. And while it's a little bit difficult to tell, I think there was maybe one woman of color during all of last term, October term 2020, if that, and many of the lawyers of color who were arguing were repeat players. So like Neil Katyal, Cannon Shamigan, and from the Solicitor General's office, Fred Liu. So it wasn't like there were many different lawyers of color getting a chance to argue cases. This sitting, however, there are 20 lawyers arguing the October sitting,

and seven of the lawyers are women. This is, again, actually better than most sittings we have seen in recent memory. And there are also several lawyers of color, including the two women of color we noted arguing in Brown versus Davenport. So not great, better than many recent sittings in the past. Other thing to note, as we flagged last time, the oral arguments are being live streamed from the court's web page and nothing bad has happened as a result of that. So hopefully, you know, that won't ever happen. Although there was maybe one moment where Justice Breyer was caught whispering during one of Justice Sotomayor's questions. So you can play that clip here. Can you explain to me how that's different from a dam?

If Tennessee filled the dam and put it... Can't help it. Can't help himself. I love it. You'd love to see it. After we recorded this episode, Texas filed a request for a stay of the district court's opinion. A stay would put on hold the district court opinion that enjoined Texas SB-8, and by putting that decision on hold, a stay would allowing Texas SB-8 back into effect, while the Court of Appeals determined whether to issue a more permanent stay. Late Friday night, a Court of Appeals panel granted Texas's request for an administrative stay and asked the United States to respond to Texas's stay request by Tuesday. So now Texas SB-8 is back in effect

while the Court of Appeals decides whether to stay the district court injunction. There likely won't be any further action in the case until Tuesday at the earliest. The panel that is hearing this motion for a stay is Judge Carl Stewart, nominated by Bill Clinton, Judge Jim Ho, nominated by Donald Trump, and Judge Katharina Hayes, nominated by George W. Bush. Thanks, everyone, for listening. Thanks to our producer, Melody Rowell. Thanks to Eddie Cooper for making our music.

Thanks to all of you. If you'd like to support the podcast, you can become a GLOW subscriber at glow.fm forward slash strict scrutiny.