Strict Scrutiny - Leg Day

Episode Date: July 22, 2019

In the second summer episode, Leah, Melissa and Jaime keep things light with a discussion of the Court's death penalty docket, the Armed Career Criminal Act cases from this past term, and Justice Kavanaugh's opinion in Flowers v. Mississippi. Kate also joins them to reflect on her time clerking for Justice John Paul Stevens. Last episode was our testing pancake, and this one is B-A-N-A-N-A-S. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, a podcast that's so fierce, it's fatal in fact. Of course, this is a podcast about the Supreme Court, but not just the Supreme Court, 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 Jamie Santos. And if you're wondering what happened to Kate Shaw, we should let you know that we don't plan to have all of the co-hosts available for every single episode. So we'll rotate among co-hosts. So we haven't given Kate the boot. In fact, she'll be with us a little later on in this episode. But we do plan to do some tag teams occasionally with just two of us or just three of us. So don't be alarmed if you don't hear all four of our voices. Today in this episode, we have a lot to share with you.

So first up is some sad news about the passing of Justice John Paul Stevens. We'll also have some updates on the census litigation. And we'll have a really interesting deep dive into the death penalty docket. And then, of course, the ACCA docket. And if you're wondering if this is about Pitch Perfect 4, you would be wrong. This is about the Armed Career Criminals Act. So we will have a lot for you on that. But it's still going to be ACCA-rific, right, Melissa? ACCA-mazing, but not acapella.

In the last part of this segment, we're going to turn to something that we hope will be a regular recurring feature called Strange Bedfellows, where we talk about the justice or justices that seem to depart from the ideological reservation to take sides with the other side. So please join us for what's going to be a really rollicking and fun second full-length episode of Strict Scrutiny. So as Melissa mentioned, we have to start this episode, unfortunately, with some sad news. Last week on Tuesday evening, the court announced that Justice John Paul Stevens had passed away at the age of 99. Now, Justice Stevens had a long and storied career, as you might imagine, given that he lived until the age of 99. He served in the Navy during World War II. He clerked for Justice Rutledge in 1947. And he was a really well-known antitrust lawyer in Chicago before he was appointed to the Seventh

Circuit by Richard Nixon. And then after he was appointed to the Seventh Circuit about five years later, Gerald Ford appointed him to the Supreme Court. At that time, he was a registered Republican, but he ultimately became one of the strongest voices of the liberal wing of the Supreme Court. And he served on the court for 35 years until he finally retired in 2010 and he was replaced by Justice Kagan. Now, Linda Greenhouse wrote this fantastic obituary in The New York Times that I really urge everyone to check out. And Leah, I think on Twitter, you flagged this really wonderful anecdote from the piece that I loved. Do you want to mention what that was? Yes. So Linda recounted a story from one of Justice Stevens' former clerks, Chris Eisgruber.

And in that anecdote, he recalls how at a court function in 1993, the court had a reception for new law clerks. And apparently one of the older justices had asked one of the few female law clerks to serve coffee at the reception. Justice Stevens arrived and he immediately grasped the situation. And he walked up to the female clerk, took the coffee from her and said, thank you for taking your turn with the coffee. I think it's my turn now. Oh, I love this. I just feel like it shows his humanity, his commitment to equality, and just kind of his respect for everyone, no matter what position they're in. And one of our co-hosts, Kate Shaw, clerked for Justice Stevens. And we're so

glad you could join us in this episode, Kate, to talk a little bit about your experience and share your thoughts upon the justice's passing. Well, thanks so much for letting me crash you guys. And yeah, the greenhouse obit was beautiful. And Jamal Green, who's at Columbia, who clerked for the justice the year before I did also had a lovely piece in the Times, just kind of reflecting on his experiences with the justice. The Eisgruber anecdote is so great, in some ways, because the justice was, you know, obviously sort of an egalitarian in his personal life, but also in his, I mean, he in his jurisprudence. And it's a funny thing, sort of historical fact that he was kind of opposed by women's groups when he was nominated to the court in 75. It's really the only organized

opposition he had. And, you know, I don't want to take too optimistic lesson in that he obviously became a champion of equality during his time in the court. But sometimes justices move, sometimes justice surprise us, right? Maybe there are, you know, maybe he's the last justice to surprise people or the appointing president or the public in the way that he did, but maybe not. Anyway, so I wasn't really going to talk about his jurisprudence at all here. But maybe just for people who don't know much about Supreme Court clerkships to reflect just a little bit like on what the experience was. And it's a really intimate one, right? So you think about like the staff around a president or the staff around a senator, right? Like there's hundreds of people. The Supreme Court chambers is tiny, right? It's like four law clerks, the justice, a secretary, a chamber's aide,? It's like four law clerks, the justice, a secretary, a chamber's aide, and that's basically it. So your whole operation, your sort of work life is, you know, six people, one of whom is a Supreme Court justice for an entire year. And you operate in conditions of extreme secrecy. So you can't even really talk

to anyone in your life about what is happening. So it is incredibly intimate. And so, you know, it's just an unbelievable good sort of stroke of good fortune to have the experience of spending all of that intimate time with somebody who's as wonderful as Justice Stevens. And if people have been following the reflections that have been pouring out from former law clerks and the other justices and lawyers who practiced before him, it is almost impossible to find anyone with a bad word to say about him, because he really just was such an unfailingly kind and gracious and lovely person. And he was rigorous and had an incredible intellect. So those two things can coexist. I think that's actually one of these

wonderful lessons, I think, that Justice Stevens teaches. So yeah, so you have this really intimate experience in chambers with him. And I just was sort of like, insofar as we kind of want to be speaking among others to law students and law clerks and people sort of earlier in their legal careers, you know, in part, at least in doing this podcast. I wanted to maybe reflect on a few things I wish that I had done a little bit differently in the clerkship. Or at least like the one thing in particular, which is it can be so kind of intimidating to be in a Supreme Court clerkship or any kind of federal clerkship that I was so intimidated by it. And I was so, at least for the first half or so, like, terrified that I would make some error. But I think I was like, in my own head a lot and didn't do as much sort of to actively kind of like, observe the way that he interacted with his lawyers, observe the kinds of legal questions that he asked, like learn everything I could

from just watching someone at the top of his game operate. So I wish I think by the end of the clerkship, I really could kind of I was confident enough, I could get out of my own way and really like fully learn from him. But I did a lot of that, I think, in reflecting on the experience after the year, as opposed to the middle of it. And, you know, you're pretty adrenalized. And, you know, especially when there are these opinions, draft opinions flying back and forth between members of the court, like, you know, it's hard to really do a lot of reflection, introspection. But it is one thing, you know, I think that I wish I'd sort of assumed earlier on, like, I'm in this job, I'm in this job for a reason, I can obviously do this job, I am sure that I will make mistakes,

and everybody does, and that's okay. And so I wish I had sort of been more present in the experience. I mean, I got a ton out of it. But that's one thing I think I wish someone had told my younger self before I started the clerkship. So I don't know if you guys have thoughts, if you want to talk about just defense or thought about those sorts of lessons. But for some reason, I've been thinking about that a lot the last couple of days. I did want to share one anecdote, which is you mentioned the just outpouring of, I think, very sincere affection and love that it is so clear all of his clerks had for him. And I was a Clemenco fellow for two years at Harvard Law School

and went to see some of my former students compete in Harvard's moot court competition. And that particular year, Justice Stevens was the Supreme Court justice to judge the final competition. And they also selected two of his former clerks to serve on the panel as fellow judges with him, Judge Barron and Judge Nathan. And when Judge Barron and Judge Nathan came out on the panel, they were both wearing bow ties homage to their former boss. And it was, again, just so clear how much they sincerely enjoyed his company and adored him as a mentor. And, that panel, he made some self-deprecating joke about how he hadn't asked that many questions because his hearing had gone a little in age and his father had told him, better to be quiet than to make a fool of yourself. And some people will do this

kind of folksiness and it seems almost affected. But with him, it was just so authentic and so disarming. It was just a really wonderful thing to see. Also, I think, Kate, one of the things your anecdote shares as these students get ready to begin their clerkships, whether on the federal bench or on the state benches, that, you know, your judge or your justice is a person and you're really going to get to know that person. And I'm so glad that you had the chance to get to know Justice Stevens as a person and to share those really warm memories with all of us. So thank you for joining us today. Thanks for letting me join, guys. Have a great rest of the show.

I can't resist noting one thing about one of the pieces you flag, which is Jamal Green's op-ed tribute to Justice Stevens. The last line. What a kicker. That's exactly-ed tribute to Justice Stevens. The last line. What a kicker. That's exactly where I was going, Melissa. Sipping the tea. So the last line. The last line of that piece recounts a story where Justice Stevens took his clerks to his

favorite crab shack. And as they were ordering, Justice Stevens quietly ordered a beer. And the last line in Jamal's op-ed is, he liked beer, it turned out, but you never would have known. Kind of a stealth burn from Jamal Green. Jamie, I know you're a gymnast. Who is the most graceful gymnast that you are aware of?

I would say, oh my gosh, there's so many. I mean, Shannon Miller was a very graceful and famous gymnast. Any Russian gymnast in the world. Jamal Green is the Shannon Miller of shade. And I am like the hulking elephant of shade. That is just amazing. Anyways, I'm sorry, Kate. That was PhD-level shade. Dr. Green, PhD in shade, for sure. All right. Back to our originally scheduled programming. So we have a couple of updates on the census case. I know we did an incredibly deep dive into the census litigation in our last episode.

And lo and behold, who knew? I knew. The census case had legs, legs that went far beyond the court's disposition of the case from the Southern District of New York. So why don't you give us an update on what's been going on at the census? So where to start? After the court declared the Commerce Department's initial attempt to add the citizenship question invalid, the Commerce Department's initial attempt to add the citizenship question invalid, the Commerce Department informed the plaintiffs that they had in fact begun printing the census without a citizenship question. Then the president did a tweet and that tweet declared that all of the reports of the citizenship questions demise were greatly exaggerated.

Fake news. Fake news is what they were. Fake news. Fake news. Right, Jamie. And then one of the federal judges in one of the census cases calls a conference. This is the best part. Judge George Hazel from the District of Maryland is on Twitter and saw the tweet. That was one of the most amazing parts of this story, Melissa. That's totally right. And then there's a conference. Judge Hazel asks the lawyers, what is going on?

The lawyers say, I don't know. One of the other lawyers says, oh, I guess we've been directed to try to find a way for this question to appear on the census. They file a brief in the other court saying, yeah, we're searching for a new rationale, a.k to substitute its entire team of lawyers for a new one. And then the president holds a press conference and says, never mind, no citizenship question after all. Obviously, there's a lot more to say about all of that. But I think that that basically encapsulates it. Right, Melissa? That's a really good and concise summary. But, wow, to be a fly on the wall at DOJ right now or the Commerce Department, I mean, it just seems like everything is incomplete and utter disarray. I mean, this is insane.

I think the legal term of art is shitshow. We weren't supposed to say that because the kids listen. Earmuffs, children. My favorite part of the press conference was when the president said, we're going to get this data about immigration another way. And you know what? That's going to be even more accurate. And so I said, this is going to be even better. So this is a better way to do it. And I just was imagining the challengers' heads exploding as he said that because that was their entire argument all along.

Exactly. The way that he had proposed getting citizenship information not on the census was the plaintiff's entire point. You don't have to get it via the census. In any event, we can all say that the plaintiffs won a huge, bigly victory, bigly. And the census will not go to press with the citizenship question. But again, as we pointed out in our last episode, the damage may already have been done. So there are lots of communities who have been watching this litigation and will surely be deterred from responding to the census. I think the ICE raids that were supposed to happen last week exacerbates that kind of tension. And we've been seeing lots of tweets from people reminding individuals that they are not obliged to answer the door unless someone identifies him or

herself as having a warrant or being authorized to come in. And I think the same kind of skepticism that might attend an ICE raid might also accompany a census-taking interview. And so people might be reluctant to answer the door in those cases as well. So we have a lot of different things going on, all of which I think may combine to suppress the response rate for the census among certain underrepresented communities. I also think what this case points out and what happened kind of towards the end points out is how important the lower courts are. I mean, I know we are a podcast about the Supreme

Court, but I somewhat suspect that absent some orders from the SDNY and I think the District of Maryland saying, no, you can't just withdraw. You need to give me reasons. What are you doing? No, you can't have an extension. You need to tell me this in two days. Otherwise, we're entering discovery. Absent that, I don't know that we would have seen the result that we saw. So the courts, the entire system is important, not just the Supreme Court. I think that that's exactly right, Jamie. So Jamie was alluding to the fact that both Judge Furman in the Southern District of New York and Judge Hazel in Maryland denied the Department of Justice's motion to substitute the entire team of attorneys with attorneys from

the Office of Immigration Litigation, who have obviously no apparent expertise with the census, but that's a separate question. And consumer protection. And consumer protection, right. And Judge Hazel had also allowed discovery to proceed on the plaintiff's equal protection claim, even though DOJ was arguing that any new citizenship question would be an entirely new policy. So the lower courts were already sending signals that they were really taking seriously the plaintiff's allegations, as well as DOJ's alleged misconduct. There's currently pending a motion for sanctions in at least the Southern District of New York.

So the lower courts are incredibly important, and I do think that they did play a big role here. All right. Let's transition. I'm sure we will be coming back to the census question as that continues to wind its way through the lower courts. But let's turn to something else. There's been much made of the court's death penalty jurisprudence over the years, like students of criminal law will remember many of the famous cases, Berman, Gregg, all of that. Very few people, however, may know that the court actually maintains a really active death penalty docket

that it goes through every single term. And sometimes these cases are disposed of quite quickly. In other cases, they actually have more lasting consequences. So Jamie, I'm gonna turn it over to you to tell us a little bit about the death penalty docket and maybe to highlight some of the important cases on that docket from this term. Great. Thanks, Melissa. So when I clerked on the Ninth Circuit, the toughest cases for me to work on were death penalty cases.

But as you mentioned, they're a really important part of the court's docket. And in my view, they bring out some of the strongest opinions you'll see from the justices. And we'll talk about some of the reasons for that. But that was one of the reasons why we wanted to highlight these cases today. So the court sees capital cases, capital and death penalty mean basically the same thing. The court sees them in two different ways. The first way is through its regular docket, just like all of the other cases that the court hears. So that would be either direct appeals of capital convictions or appeals of habeas decisions. And habeas decisions arise. Did you say habeas? I said habeas. That's like a bat signal for me. Yes, the bat signal went out. So basically,

and Leah, correct me if I'm wrong, but I did learn Fed courts from Dan Meltzer, so I feel like I know some habeas. So habeas cases arise when an inmate tries to attack his conviction or his sentence after it becomes final. And this most often happens, but not exclusively, but most often when someone was prosecuted in state court and they went through all their appeals. But then afterwards, they wanted to go to federal court to argue that either their sentence or their conviction violated the Constitution. Is that generally right? Yep. All right. So the second way the court sees capital cases is through its non-argued docket. And this happens when there's an inmate who is at immediate risk of execution. He's got an execution date set, and he goes to court to stay that execution. And so, Leah, why don't you talk a little bit about the kind of mechanics of how the court handles death penalty cases? Sure, Jamie. So the non-argued docket includes stays, but it also includes cases that the court

might dispose of without full briefing and argument. But death penalty cases go to the court via stay applications often. And the way it works at the court is every week there's a clerk who is a permanent employee at the court known as the death penalty clerk. And that clerk will send out a list of all of the scheduled executions over the next few weeks. The chambers will then assign one clerk to each execution, and that clerk will await any filings that might come in seeking a stay, for example, of execution. And so that is how death penalty cases are kind of divided up at the court. Again, the expectation is that a fair number of these cases will involve last minute stays or stay requests because some of the claims that death

penalty litigants can raise don't arise until the execution is scheduled or impending, such as challenges to the method that the state might execute a particular prisoner. A prisoner might not know what the drug protocol is that a state is going to use or what the state's execution protocol is until pretty soon before the execution. And so since there's this, you know, a death penalty clerk that knows what's going on in the lower courts, when you see a cert petition on the eve of execution at 9 p.m. when there's an 1159 scheduled execution, that doesn't mean the court was actually taken by surprise. There's a lot of communication between the litigants and

the lower courts and the Supreme Court throughout the whole process. Is that right? That's exactly right. And you mentioned the role of the lower courts because oftentimes the litigants can't really file their request sooner until the lower court has disposed of the stay application or whatever the also because I kind of felt like if I couldn't convince my judge to that I was, you know, of the position that I thought was right, or if I couldn't help him convince his colleagues that I was basically responsible for someone's death. And I was curious what your experiences were during your clerkships if you had that same kind of sentiment. Well, on the Second Circuit, we did not really have an active death penalty docket. So happily, I was spared from having to work on these cases because they just sound like they are incredibly emotionally draining. So I clerked on the Sixth Circuit, and the Sixth Circuit includes a few states that have capital punishment. So I saw a few of these cases on the Court of Appeals.

Not so many stay requests on the Court of Appeals for whatever reason. I just remember personally dealing with two of them. But they do feel incredibly high stakes because the risk of an error is so – even if the risk is small, the magnitude of the error is just enormously consequential. And I think that what we'll see in the decisions from last term that we're going to talk about in a minute is this kind of emotional toll and the significance really affecting the way the justices write their opinions and interact with each other. So let's start talking about that. Some explosive things happened on the court's death penalty docket, and it all started with a case called Dunn v. Wray. Melissa, do you want to talk about the facts of Dunn v. Wray a little bit? I'll explain them very succinctly. I think there's been a lot of press coverage of Dunn. But basically, there was an African-American

Muslim man who was imprisoned and was awaiting an execution. And for his execution, he wanted an imam, which is in Islam, sort of the holy man, the holy clergy in Islam, to be present in the execution chamber. The prison, however, only offered a Christian chaplain. was obliged to provide him with a clergy person of his faith, namely the imam, who would provide whatever last rites are issued under Muslim doctrine. And again, really heightened because it involves the question of Islam, the whole idea that the prison provided a Christian but not any other religions clergy person was also an issue. So the default here was Christianity and whether or not the state was then obliged to provide alternatives for those who are not Christians, which to me seemed pretty straightforward, but apparently not so. And so the legal claim at issue in that case was one of the establishment clause, which basically prohibits the state from expressing an official preference for one religion over another. And that was what the court of the court did was just reverse the Court of Appeals, which had issued a stay to allow Mr. Wray to present his claim,

which, as we've all been suggesting, is quite powerful. And all that the court said was that the stay was vacated. And then the court cited an opinion which said the last minute nature of an application to stay execution is a factor to consider in whether to grant equitable relief, basically implying that Mr. Wray had filed his stay request too late. And one thing we should mention is that the 11th Circuit, which is one of those super liberal circuits, right, ladies? No, the most liberal. No, it is not. It is known as a fairly conservative circuit. So the 11th Circuit in issuing a stay had specifically said that Mr. Ray had not – had essentially not delayed, that he had raised the issue at the earliest opportunity, that there was – would have been no reason for him to believe that he wouldn't be permitted his spiritual advisor before January 23rd when he met with the warden to discuss his execution. And he filed his suit five days later. So the 11th Circuit had expressly addressed this issue. And the Supreme Court didn't do so

when it made its decision. Well, Justice Kagan didn't in a sense. So she suggested the majority was very wrong in suggesting that Mr. Wray could have brought the claim earlier. And, you know, Dunn versus Wray, I think, had significant implications on the rest of the court's capital docket for the next few months because it was clear, you know, from Justice Kagan's dissent that obviously there were some very strong feelings about the court's resolution of this claim. All the feelings. All the feelings. And the case generated a fair amount of commentary, as Melissa alluded to. And one of the issues that I wanted to point out is there was some initial thought that Alabama had changed its execution protocol in light of Dunn v. Wray. And specifically, there were stories and op-eds that were premised on the idea that Alabama had changed its protocol such that it denied all prisoners,

any spiritual advisors, in the execution chamber. However, it's not clear that that actually happened. The belief that Alabama changed its policy arose from one brief that Alabama filed in which it stated that to accommodate the constitutional claim, no chaplain would be allowed into the execution chamber at all. But Alabama subsequently filed a reply brief in which it said it had, quote, inadvertently included that language in its earlier brief. It attributed it to a, quote, scrivener's error and claimed that was not our

position. That's not what a scrivener's error is. That's not what a Scrivener's error at all. And I think that this kind of explains partially what drives some of the last minute nature of these stay requests, which is there is genuine uncertainty about what the state is doing in these execution protocols. So for those at home who don't read enough Herman Melville, a Scribner's error is basically a sort of stray or technical error in a writing. This was obviously a much more consequential omission. It's like essentially a typo or maybe a slightly more serious version of a typo. This was not that. Right. Okay. So after Ray, there were a number of unusual things that started happening on the death penalty docket. The first case was called Dunn v. Price.

So it was another case involving the 11th Circuit where the 11th Circuit had once again granted a stay of execution to a prisoner who argued that the method of execution that the state of Alabama was planning on using, it was this three-drug cocktail, would have caused him serious harm and that he should have been able to be executed using nitrogen hypoxia, which I think you would inhale essentially a form of gas. And the Supreme Court again vacated the 11th Circuit stay relying on delay. The court said that death row inmates had had the opportunity to elect to be executed by nitrogen hypoxia the year before, that Mr. Price had not done so, and that he waited too long. Justice Breyer in that case dissented, and he specifically noted that the district court had made a factual finding, similar to Dunn v. Wray, that Mr. Price had not timed his motion in an effort to manipulate the execution, that he had moved even before his execution date was set and tried to get relief as soon as possible. And this is where things got a little interesting.

So Leah, what did Justice Breyer do in his dissent? What did he say? So in addition to challenging the majority's claim that Mr. Price had unfairly delayed filing the stay application, Justice Breyer also revealed some internal deliberations of the court. He said he had asked the other justices to delay their consideration of Mr. Price's application until the following day's conference. And he said, they just ignored me and summarily disposed of this without allowing conversation. That is wild. Like, that is wild to put in a Supreme Court opinion. Right.

I mean, he's like spilling all the tea. Like, there's so much tea this term. So much tea. It's not just that he is spilling tea. It's who is spilling the tea. This is notable institutionalist Justice Breyer basically having a meltdown in the Supreme Court pages, reporter pages. there was tea spilled on the en banc process and what was happening. And there was one judge who said, you know, as I'm writing this, the panel majority is still rewriting its decision, and I won't even know what it's going to say. I can't remember what case that was, but I can, we can, I'll tweet it out afterwards once I find it. But this is super unusual. And one factual

thing I wanted to notice, to note is that in this case, not only did the court say, sorry, we're not going to wait. The state of Alabama had already decided to call off the execution. So there was no actual risk that that, you know, waiting until the morning to discuss it would delay things. Things were already delayed. And Justice Breyer seemed really upset about this. Yeah, so that was another case that arose on the stay docket, Dunn v. Price, that seemed to have some fallout from the court's earlier decision in Dunn v. Wray. But I think another case on the stay docket or the non-argued docket was Murphy v. Collier. And in that case, that involved another claim that was very similar to the claim in Dunn v. Wray. Here you had a prisoner from Texas

arguing that the state of Texas afforded Christian religious advisors the opportunity to enter into the execution chamber, but the prisoner was Buddhist and he wanted a Buddhist spiritual advisor to be able to accompany him into the execution chamber and Texas denied it. The Fifth Circuit, which is the court of appeals that oversees Texas. As liberal as the 11th Circuit. Exactly. Denied the stay application. And in this case, the Supreme Court granted the stay application. Wait, wait, wait. They granted it? So it was basically the same case except a Buddhist

instead of a Muslim, but they granted it this time. Yeah. So this is part of where some of the discomfort, Jamie, as you are suggesting, arises. Why is the court favoring the nominally white Buddhist prisoner over the black Muslim one? And so part of what this case leads to is a separate writing by Justice Kavanaugh in which he attempts to explain the difference between these two cases. He doesn't specifically mention Dominique Ray, but what he says is that Mr. Murphy made his request to the state in a sufficiently timely manner that he says was one month before the scheduled execution. It turns out that that's not right. If you read Mr. Murphy's filing, he filed a federal civil rights claim to his execution, challenging his execution two days before his execution.

That is, of course, much closer to the date of the execution than Mr. Wray filed his stay application. Now, Mr. Murphy also filed a state court challenge, but that was not what the Supreme Court was reviewing. And in any case, that state court motion had only been made two weeks prior to the date of the execution, which is, again, the same window that Mr. Wray had filed his stay application. So this looks super weird. And I wanted to flag two other super weird things that I noticed happened related to Murphy. So you have this decision that comes out. And then six weeks or two months later, there were these separate opinions that were filed by Justice Alito and Justice Kavanaugh on the same case saying, oh, by the way, you know that decision we came to six weeks ago? Here we're going to explain why Justice Alito explained why he thought there was delay and

Justice Kavanaugh explained why he thought there wasn't. And I have just never seen that. Opinions filed months after a stay request is decided. Have you have either of you seen that? I've seen that on the Court of Appeals, but not necessarily at the court. Yeah. And then on the same date that those separate opinions came out, the price came, the price case, the method of execution case we talked about, came back to life. It was the nitrogen hypoxia case because the case had gone back down and then

Mr. Price filed another cert petition trying to stop his execution and the court denied it. But Justice Thomas wrote this long blistering opinion to set the record straight on what had happened before and why Justice Breyer was basically wrong in his very kind of angry dissent about what the court did. So this was just, there was a whole bunch of tea spilling and emotion and anger, re-litigating the facts of things that had happened months prior. And so, Jamie, the point you just mentioned, the re-litigating the cases that have already been decided by the court is something the court continued to do in another case, Bucklew, which was one of the cases that the court heard on its argued docket. In that case, the court addressed an Eighth Amendment challenge because Mr. Bucklew had a unique condition, vascular tumors, that he said would mean that the state's injection protocol would cause him

horrendous amounts of pain and suffocation. And the court ended up rejecting that claim. But in the course of that opinion, which Justice Gorsuch wrote, he included a passage of the opinion in which he suggested that there were problems among the death penalty bar in which they were filing stay applications too late. And he said, we, the courts, have an obligation to basically do something about this, including rejecting untimely stay requests. See our prior decision in Dunn versus Wray. Which prompted a very vehement dissent from Justice Sotomayor.

And I actually, I'll read her language out loud. I'm especially troubled by the majority statement that, quote unquote, last minute stay should be the extreme exception, which could be read to intimate that late occurring stay requests from capital prisoners should be reviewed with an especially jaundiced eye. Were those comments to be mistaken for a new governing standard, they would affect a radical reinvention of established law and the judicial rule. Melissa, your former boss, she just nailed this one. She's good, especially in these criminal justice cases. So let me offer a contrary view as kind of devil's advocate, because I think what Justice Gorsuch was talking about here is that it has

been a problem for decades that people, when they're being executed, all of a sudden come up with new claims. And we don't want to be incentivizing as a court people from, we don't want to encourage them to be doing this over and over. I mean, it draws things out, which makes the death penalty even more arbitrary and capricious. It throws these states into disarray. It's not like you can just execute someone a day later. You have to sometimes wait 90 more days for a new death warrant to issue. And so we need to be careful about this. constitutional violations that are irreparable would outweigh that. But is there a very legitimate concern with these frivolous filings being filed that are just intended to kind of delay the inevitable? I just feel like that is, again, abstracting from a world that doesn't exist, particularly when he is using Dunn versus Wray as an example of the kind of last minute claims that the court is supposed to prevent. Alabama, the stated issue in Dunn v. Wray as an example of the kind of last-minute claims that the

court is supposed to prevent. Alabama, the stated issue in Dunn v. Wray, had throughout the litigation attempted to conceal its execution protocol. That is, it was involved in litigation in which it argued that it could keep its execution protocol secret. So there's a reason why these claims are last-minute. States are not disclosing what their execution protocols are, and the nature of their execution protocols is partially what gives rise to these constitutional claims. And as we were saying earlier, the petitioner's ability to file these stay

applications at the court also depends on the actions at the lower court. So to put the fault and presume that all of the fault lies with the death penalty bar is, again, I just think, assuming a world that doesn't exist, particularly when you think about the incentives here. I mean, if you are actually thinking about who wants to stop their execution, why would the prisoner wait until the last minute, right? They want to stop their execution. Why not do it earlier? This is kind of like the same premise that operates in a lot of the court's habeas jurisprudence,

where the court will say, oh, well, we're worried about giving prisoners the ability to raise a claim in federal court that they didn't raise in state court because they'll sandbag the state courts and not present the claim. If you think you have a winning claim and that that claim will overturn your conviction or prevent you from getting a death sentence, well, you're going to raise the claim. And also a lot of these claims by their nature arise later. So for example, Mr. Bucklis, that arose because he developed this condition later in time. So it's like he is not considering the nature of the claims that he is adjudicating either in Dunn or in Bucklew, and also not considering why these claims arise last minute, given how states are

treating their execution protocols. I think I agree with part of that, that there are claims, absolutely, where it doesn't arise to the last minute. But there are good reasons why people raise things last minute. You have bad lawyers until you kind of have an execution that's almost set. And then there are these great- But then who should bear the fault for those bad lawyers? Right, no, I totally agree with that. I'm not sure that it's a totally fictitious world. I think that what I interpreted Justice Sotomayor to say is that we just shouldn't assume that all of them are frivolous just because that might be the case in some. We need to take each case as it comes to us and look at it seriously. And now we get to the best part of the episode.

Sorry, Melissa. No, you want to jump in. No, I was like, look. So when I first got the episode notes for this episode, I was so excited because in addition to being a fan of Meghan Markle and the British royal family, I also love college a cappella. So I was like, excellent. I was scratching my head.

What case this term had anything to do with the Virginia Gentleman the hullabaloo? I could not recall a single one. And then it occurred to me that it was not, in fact, about college a cappella. But instead, we are going to do a deep dive on the Armed Career Criminals Act. And it's also going to be pitch perfect, right? A ca awesome. A ca awesome. So the Armed Career Criminal Act is a big part of the court's docket.

And it's also something that really puts a light in Leah Littman's eyes. So I'm going to turn it over to Leah and Jamie, who are going to unpack this for all of us. So listen up at home. This part is going to be amazing. This is the moment you've been dreaming for, Leah, isn't it? Dreams really do come true, girls and boys. All right. So why don't we start at the beginning? A very good place to start. Why don't you just explain what ACCA is? What is the statute? When does it apply just as a kind of general matter? Armed Career Criminal Act is a statute that creates some enhanced penalties,

largely for a set of crimes that are unlawful possession of a firearm. So basically, some individuals who unlawfully possess a firearm are subject to a 15-year mandatory minimum rather than a 10-year statutory maximum if they have certain prior convictions, namely a certain number of prior convictions for violent felonies or serious drug offenses. So since the enhancement carries a significant penalty, I assume that these predicate crimes are clearly set forth in ACCA to avoid any confusion by the courts or by the individuals who are subject to them, right? That is also not the world that we live in, Jamie. The Armed Career Criminal Act defines violent felonies in a few different ways in a few different places,

among other things, it enumerates certain offenses that are considered violent felonies, like burglary or arson. It also lists any felony that has an element of the use of force as a violent felony. And then it contained a residual clause that said anything that otherwise involves a substantial risk of force against person or property is also considered a violent felony. Those are not super well defined. Okay, so then how have courts figured out what crimes count as predicate crimes? So they use something that's called the categorical approach, which is basically if you are about to become a federal law its nature, that is the elements of the offense, the way the state defines the offense, falls within the general federal definition of a violent felony. So that's what the categorical approach is. So basically you ignore how the crime was

actually committed and you just look at how state law defines it? Yes. So the lingo is you aren't concerned with the defendant's actual conduct versus the generic offense. That's what you're interested in. Okay. And so I follow you on Twitter, obviously. And it seems like- I also follow you, Jamie. Yes. It seems like every other week, you are rejoicing in ACCA grant and the alarm bells go off and the bat signal goes up in the air. Why are there so many ACA cases? I think it's because it's a poorly drafted statute that was quickly assembled. And so that generates a lot of confusion in the courts of appeals. But part of the sheer number of ACA cases also arises because the statute sweeps in, you states, 50 different definitions of crimes.

And so there's a lot of diversity among how states define crimes. And so that is also going to create some inevitable uncertainty in whether particular state crimes qualify as ACCA predicates. To give us a bit of a flavor on the type of ACCA cases that come before the court, can you tell us some of the cases that the court decided this term? Yes, I can. So first, there's Sims and Stitt. That addressed whether entry into a vehicle that is customarily used or adapted as a dwelling counts as burglary for purposes of the Armed Career Criminal Act. There was also Rahaf, which addressed whether you unlawfully possess a firearm if you don't know that you are unauthorized to be in the United States. So ACCA makes it unlawful possession of a firearm if someone who

is unlawfully present in the United States possesses a firearm. And so the question there was whether you have to know you are unlawfully present. Then there was Stokeling, whether Florida's definition of robbery qualified as robbery because it had an element of the use of force for purposes of the Armed Career Criminal Act. There was Quarles also addressing whether a particular state statute qualified as burglary for purposes of the Armed Career Criminal Act. And then Davis, which involved a constitutional challenge to another provision of ACCA. Just because I like rhyming and because Melissa has done such a good job with the rhyming this episode, I wanted to mention that ACCA's rhyming twin DACA made an entrance in the

Rehaif case, right? Yes. So as I was kind of alluding to, the question in Rehaif was whether a defendant is guilty of unlawfully possessing a firearm if the person is unlawfully present in the United States but doesn't know they are unlawfully present in the United States. And so one of the hypotheticals is if you have a DACA beneficiary who, for example, thinks they are lawfully present but may not be, is that person potentially guilty of unlawful possession of a firearm? And that came up quite a few times at oral arguments. I think it's a kind of a good example of how current events and concern for people who might be truly innocent appear to the court. All right. So these ACCA cases involve statutory interpretation. As you mentioned,

there are a ton of them. So the court is often looking to its own prior decisions. So what do they tell us about how the court treats statutory text? So when we think of statutory interpretation cases, usually we think of the justices as dividing into two different camps. On the one hand, you have what's known as textualism or textualists. On the other hand, purposivism or purposivists. Textualism is nominally the idea that in deciphering what a statute means, we care about the statute's text. Purposivism is the idea that in deciphering what a statute means, we care about Congress's purpose.

As Justice Kagan famously declared, we are all textualists now. And so really the divide today is what tools do you use when you are trying to decipher the statute's text? On one hand, you have justices who don't like to use legislative history when they are trying to divine what the median of a particular text is. Other justices are okay with using legislative history. Or you have justices who want to consider the broader context or structure of a statute or, you know, legislative context and other justices who say, no, I would prefer to narrowly focus on this one word or more, you know, different grouping of particular words

in a statute. So I think that that's probably a more accurate summary of the division on the court now as opposed to the divide between textualism and purposivism. Okay, so what are some of the specific techniques that the court has used in looking at ACCA in particular? So I think the one that we saw a lot this term is a technique I kind of think of as state counting, which is because ACCA creates a general federal definition of certain crimes, violent felonies or burglary or arson, we have to figure out whether certain state crimes fall within that general federal definition.

Because there's no definition section, basically. Naturally. So what the court will do is it has said that when Congress enacted ACCA, it meant to include a majority of the state's definitions within the general federal states' burglary statutes qualified as burglary under ACCA? Well, the court will say that's not right because we know Congress meant to sweep in more state predicates than that. The state counting to me always seemed a bit odd because I just have had a hard time thinking that Congress is sitting there actually looking, you know, having a poll on how many states define laws and to include, you know, breaking versus not, you know, breaking and entering. Is it as a purposivist matter? Is there any indication that's what Congress was actually doing? So I think that you can sympathetically

reconstruct state counting as a textualist method of interpreting ACCA. If you think that, well, if you want to know what the word burglary means, why don't you look at how states define burglary, right? That's kind of a common usage of the phrase or a legal usage of the phrase. And maybe we think it's reasonable to say that Congress is using it in a way a majority of the states did. But in the court's opinions, it starts to look a little purposivist because the court will say things like it would be insane if Congress the ground that under that interpretation, armed robbery in Florida wouldn't qualify as an ACA predicate. And the court basically says it would be insane to think that that was Congress's intended meaning. And that starts to have a very purposivist flavor where the court seems interested in, well, what did Congress want this statute to do? And in Stokeling, I remember Justice Sotomayor was in the dissent in that case. And I recall her kind of chiding the majority for ignoring the text, which kind of gets to the not really strange bedfellows, but playing against type that we talked about a bit last term. Because as you

said before, the liberal justices are typically the ones who are either accused or characterized as being more purposivist and less textualist. Yeah, I think that that's exactly right. Justice Sotomayor's dissent in Stoke Lane specifically took the majority to task for being concerned about the quote, consequences of its ruling rather than the language the Congress used. All right. So what are some of the other tools that the techniques that the court uses in interpreting ACCA? So the court also uses canons of construction, which are kind of like general rules for how you determine what particular words or language means. There's one canon that says, you know, if words are on a list, well, you interpret the words

on a list to mean kind of similar things, or you interpret them, you know, in relation to one another. So let's take the word goat, for example. If I say, I'm going to a pet farm to pet horses, bunnies, and goats, right? I'm talking about goats as the animals. Not Serena Williams? That's what I, right. If Serena Williams is a fierce queen, a role model, and the goat, right? I am calling her the greatest of all time. Who you are not allowed to pet. You are not allowed to pet. Exactly. Don't do it. Don't do it.

I'm not a pet Serena Williams. Exactly, Melissa. So many of the canons of construction I learned about in law school, I took leg reg from Adrian Vermeule. They talked about these kind of, the rules you're talking about, what the text looks like. Leg reg? Legislation and regulation. I thought it was like Adrian Vermeule's leg day or something like that. Oh no, oh no, no, no, no, no. I can't unhear or unsee that, Melissa. Working on your fitness with Adrian Vermeule.

But most of the canons were these kind of language canons you talk about. It depends on, you know, where is there a comma and what do the words look like? But there are also substantive canons of interpretation. And that's one of the canons that was used in Rehaif. Yes. So substantive canons of interpretation aren't, you know, general rules for what any word in any context might mean. Substantive canons are based on some idea about what the world is or

should be. So for example, in Rehaif, the court relied on the canon that when Congress defines a crime, it is often most concerned with the defendant's mental state. Because when we think about criminality and wrongfulness, and bad acts or bad actors, well, we are really concerned with people who intend to do bad acts. And so that is a substantive idea about what it means to do a crime or be a criminal and what we think the nature of criminal law is. And so that was part of the driving force of the court's opinion in Rehaif, a more substantive canon of interpretation. Okay, so I'm sure we're going to talk a ton about canons of interpretation next term when we launch fully.

But let's let me ask you a couple of questions about something else we talked about last episode. Stare decisis. Has the court stayed pretty consistent in its approach to deciding ACA cases? I don't know whether to laugh or to cry, Jamie. So in several of the court's opinions this term, the court was basically confronted with a question about how seriously should we take your language in a prior case. So for example, in Simpson-Stitt, the court was deciding whether entry into vehicles that were customarily used or adapted for overnight stays counted as burglary for purposes of ACCA. And in two prior cases, the court had suggested not. So in a prior case, Taylor, the court had said, well, some states define burglary in a way that sweeps more broadly than the general ACCA definition of burglary, including entry

into vehicles. And that seems to imply that entry into a vehicle isn't burglary for purposes of ACCA. And in Simpson State, the court basically says, eh, don't take that language too seriously. Didn't mean that. And then, of course, in Stoke Link, the court has to answer whether common law robbery under Florida law qualifies as having an element of force, even though it had previously said that common law battery did not because the element of force that is required under ACCA includes violent force or a substantial degree of force. And in that prior opinion, that's what the court had defined the element clause of ACCA to mean.

And in Stokeling, the court kind of says, you know, we meant that, but maybe only in the context of common law. Battery, not robbery. So in both of these cases, it seems like the court is saying, you know, take us seriously, but maybe not literally. And that's something that Justice Sotomayor talked about in her Stokely dissent, right? Yes. So she just excerpts full on the entire paragraph of Johnson in which the court defined what kind of force is required under ACCA. And I think, again, it is clear that the court was saying it requires more than just a risk of any kind of force. It requires violent force, substantial degree of force, not the kind of force that happens if, for example, someone takes your purse and just brushes up against you or touches you, which qualifies as Florida

robbery. All right. So I am sure that as next year and the year after progress, we're going to see more of this tension with looking at prior decisions and what methods of interpretation you use. But we can't go through this without mentioning the last ACA case from this term, United States v. Davis. And in that case, it seemed like the court more closely adhered to its prior decisions. What was that case about? Yeah. So Davis, as I noted briefly, was just a constitutional challenge to one provision

of ACA and specifically its definition of violent felony. And that provision in ACCA defined violent felony the exact same way as the general federal definition of violent felony in another provision of the Federal Criminal Code, Section 16b. And in the court's prior opinion in DeMaio, the court had held that language unconstitutionally void for vagueness. It was too unclear. We have no idea what it means. And so the question in Davis is, you know, is that same language unconstitutionally vague?

And obviously the court said, yes, it was. So there wasn't really a question about whether it was unconstitutionally vague. The question was how you are going to interpret that language. And would the court stick with the interpretation it had previously given to the statute or would it change how it interpreted the statute in order to avoid invalidating it. And you have a 5-4 opinion in which the court says, no, the statute means what we said it meant and therefore it's invalid. And one thing I found really interesting in the Davis oral argument was something that the chief said. He was basically chiding the government for arguing in all of these cases that if the court rules against the government, that there's all of these other statutes that will fall, the sky will fall. And then the court rules against the government. And then they come back and they say, oh, just kidding.

This statute hasn't fallen as well. Can we play that part of the argument here? The government in all of these cases keeps upping the ante, even though they continue to lose hands. I mean, these prior cases say, well, if you rule this way, all these other ones are going to fall. And then we do rule that way. And then you've got to come back and you've already given up all those other ones, case after case. I would have thought you'd be more interested in saying that there are plausible distinctions in these other cases so that you don't automatically stack the odds against you when that next case comes up.

So I'm glad you flagged that clip, Jamie, because I thought the justices were all extremely on brand in this argument. And here you have the chief basically second guessing the lawyering and the solicitor general office, which is, I just think, very on brand for him. But then what side did he join in the opinion? He joined the dissenters. Okay. The last thing I think we should mention about Davis is that we've talked a bit and we'll talk more in the future about the difference between Justice Kavanaugh and Justice Gorsuch on criminal cases. They don't always come out on the same side. And they didn't come out on the same side in Davis, did they? No, they did not. And in fact, the majority is authored by Justice Gorsuch,

dissent authored by Justice Kavanaugh. All right. So we'll keep an eye on that more going forward, and that I'm sure will be part of our strange bedfellows section in the future. But before we move on, can I just ask a question, Leah? Like, there are a couple of threads here that seem to unite. And so maybe just sort of to bring it all together, can you tell us how all of these ACCA cases fit together and what that might mean for the upcoming term that we are about to see launch in October? Oh, can I ever, Melissa? All of the ACCA cases are interestingly related. So first, I think you

have a question about what the court's opinion in Stokeling actually means, because there the court held that Florida robbery qualified as having an element of force. And the dissent accused the majority of defining element of force as it is used in ACCA differently for purposes of Florida robbery than it did in its prior opinion in Johnson for purposes of battery. And on one hand, you would think, wow, that's absolutely insane, right? Of course, the same phrase in a statute can't mean one thing in one context and another thing in a different context. It's the same phrase, same provision and whatnot.

But then in the court's opinion in Davis, you have all nine justices signing off on the idea that actually one word in a statute can mean different things when it's applied to different subsections. So it's not clear that the dissent was wrong in Stokely, but it's also not clear that the majority would have been wrong or so outlandish for saying that one phrase can mean different things. Something else to really watch for next term is whether the so-called categorical approach that Jamie and I alluded to is long for this

world. The categorical approach has led to a lot of confusion, but it has also defined all of the court's acutures prudence. And one question that the court is going to answer this upcoming term is whether to abandon the categorical approach for one federal statute that defines what a serious drug offense is. And Justice Thomas contoured separately in quarrels to say that he would abandon the categorical approach for other statutes as well. So that is definitely something to watch for the next term and could really work a wholesale revolution in the court's ACCA cases. I have to say, as a former trial and appellate court clerk, I am sure many courts would welcome that change because during both of my clerkships, it was one of the most frustrating experiences

trying to figure out how exactly to apply the categorical approach in a particular set of circumstances. One other thing that I just wanted to flag, since this is kind of a Justice Don Paul Stevens appreciation pod, is a potential Second Amendment challenge to the Armed Career Criminal Act, because the statute prohibits possession of firearms by a large category, several different categories of persons. And Justice Stevens wrote in his recently released autobiography that in the court's major Second Amendment decision, Heller versus District of Columbia, he was concerned that the majority opinion would Heller saying that the decision didn't invalidate those statutes, even though that wasn't the majority's initial inclination and not something that they apparently cared about. So it will be interesting to see whether the court is open to any Second Amendment challenges to any of the provisions of ACCA as well.

And we're going to see an ACCA case coming up in OT 2019. Isn't that right, Leah? Yes. So that is the challenge to whether the categorical approach is going to continue to define the court's definition of serious drug offense. Right. And that case is called Shular versus United States. So stay tuned for that in OT 2019. Shifting gears, as we wind down this episode, we wanted to bring you what we hope will be a regularly recurring segment that we like to call strange bedfellows or alternatively playing against type. And in this segment, we want to discuss some of the justices, maybe focus on a particular justice who in a particular case kind of departed from his or her ideological camp or prescribed ideological camp. And so in this episode, we're going to focus on the court's newest justice, Justice Brett Kavanaugh, who in his inaugural term had a couple of really interesting departures from the conservative fold. So let's talk a little bit about Justice Kavanaugh and his opinion in Flowers v. Mississippi,

a challenge to on Batson ground. So can someone explain Batson for those at home who have never been on a jury or have never tried a criminal case? I can do so. So basically, the court's decision in Batson, and I don't recall all of the facts of that case, but basically the holding was that it is unconstitutional to – when you're seating a jury, you have certain cause strikes. You can strike a juror because maybe he knows the lawyers or he knows the judge. Or you can do a peremptory strike, which basically means for any reason you can strike a juror. And you don't have to say why. Yes, exactly. And what the court said is even for peremptory strikes, you cannot strike a juror because of the color of their skin.

And the court created this framework for determining whether there has been a – that type of protectual strike by – basically if one party strikes a number of black jurors, let's say, the other party can say, look, I think you're doing this on the basis of race. And then the party that struck the jurors can explain why they did not strike those jurors on the basis of race. And then the challenging party can go back and say, no, that was pretextual. Here is the evidence why I think it was really on the basis of race. And it comes up all the time, actually, in trial court litigation. I had several criminal cases where this came up. And that's what the Flowers case was about. Facts of Flowers were completely outlandish. I think they were kind of bananas. As an African-American woman, B-A-N-A-N-A-S. B-A-N-A-N-A-S. These facts were bananas. Sixth trial. Over the course of

these six trials, the same white prosecutor had struck 41 out of the 43 eligible black jurors from serving. And this was six trials for the same defendant. This wasn't six different trials for different people. No, same defendant. At some point, this doesn't look like a coincidence. I mean, I think you would have to strain credulity to say that this was all coincidental. Yeah. And yet that's what some of the dissenters say. They claim that Mr. Flowers had presented no evidence of racial discrimination little bit about Justice Kavanaugh, because we don't know a lot about Justice Kavanaugh. All we have is his record on the D.C. Circuit and his testimony during the confirmation process. And the D.C. Circuit doesn't hear a ton of criminal cases. So, I mean, we have a really thin record for determining what Justice Kavanaugh is going to do in these criminal justice contexts. And here it seems he is actually

quite sympathetic to this particular defendant, who, by all accounts, really was prevented from having a jury of his peers. And to be clear, when I say jury of his peers, I don't mean like the jury had to be all African Americans, but that there may have been African-Americans who were plausible witnesses who seem to have been struck from the jury pool simply because they were African-American. And Justice Kavanaugh seems incredibly receptive to that argument. And so then the question is, and there was some commentary in the aftermath of this is, you know, is Justice Kavanaugh going to be attuned to racial discrimination claims? Is he, you know, woke? Super? Right. Hashtag woke. Melissa, do you have any, do you want to share some initial thoughts with us about this? On the wokeness of Justice Kavanaugh. Yeah.

Well, let me first say this. One of the things that came out in the aftermath of this opinion was that Justice Kavanaugh actually has some experience, at least thinking about Batson because he wrote his note for the Yale Law Journal on Batson. So this is an issue that is actually pretty close to him and one that he feels quite strongly about. So, you know, that's great. So he may not have had this experience as a lower court judge, but he does sort of come to it with some kind of intellectual prior. But to sort of say that this is the basis or the foundation for rethinking Justice Kavanaugh as a jurist who is perhaps receptive to the claims of criminal defendants. I'm not sure that we have enough evidence of that. This was a case, as you say, Leah, that was so striking in terms of the facts. I mean, there were 43, 42 prospective African

American jurors and only one or two of them actually survive on this jury. I mean, that's incredibly damning, regardless of what the dissenters say. I actually want to see what Justice Kavanaugh does when the facts are a little less stark and a little less obvious. I mean, this was kind of a case for Captain Obvious. And I'm surprised that there were dissenters here because I think there was quite strong evidence that something was up here and that this was not business as usual. expressly, we're not breaking any new legal ground, folks. We are just error correcting, which is generally what the court doesn't do in granting a cert petition. Even Justice Alito voted here. I mean, no one is saying that Justice Alito on the basis of this decision is woke. And so I don't think we should ascribe that. Hashtag woke Alito. I'm saying it now. But I think everyone agrees the facts of this case were incredibly

extraordinary and that we are not likely to see a case where the facts are as stark as this in the future. What we are likely to see are perhaps more nuanced cases where the prosecutor does a better job of perhaps masking, if there is racial discrimination at work, masking that discrimination with other more acceptable reasons for excluding a juror. I just wanted to mention one of the additional facts that we haven't talked about, which is that the statistics indicated that the prosecutor asked on average 29 times more questions of prospective Black jurors than white jurors. So speaking of the prosecutor's ham-handed, blatant, obvious racial discrimination, again, the facts of this case

were just very striking. It also came out of the county that Fannie Lou Hamer came from, where she was beaten. This is the woman who is on the name of the Voting Rights Act. So it is a county with a real history of racial discrimination in addition to these stark facts in the particular case. So you put all that together and it's not exactly like you have to be on the cutting edge of understanding all of the different manifestations of race discrimination to say there was a Batson violation here. You don't need to be a Bryan Stevenson to roll in in favor of the defendant here. And just to add a tiny bit of color to what Batson challenges look like in

practice, because by the time they come up to the court, there's statistical data and there's all of this, you know, all of these well-developed arguments. In practice, a Batson challenge is usually a sidebar. You have about 45 seconds to try to make an argument and to explain why it's pretextual or not, you don't have the time for data analysis. So it's pretty extraordinary for a case to come up with this good of a record, really. I guess while we're talking about this idea of playing against type or strange bedfellows, I don't think that Flowers is necessarily a foundation for declaring Justice Kavanaugh firmly in the liberal camp on criminal justice issues. I think he's going to have a long career on this court. We will see his philosophy on

criminal justice cases unfold. This case was, I mean, I think I would be more worried if he had not voted with the liberals on this case. I'm not particularly surprised that he did just because the facts of this case are so jarring. And honestly, the outcome should be so obvious. All right. So that is all the time we have for today. But before we leave you, we wanted to highlight some of the reviews that we've gotten from listeners. We are so excited that you are excited about this podcast, and we love reading your feedback. We hope that you've seen in this particular episode

that we've tried to be responsive to your incredibly helpful and constructive feedback. But Leah's going to call- Our phones were off. Our phones were off this time. We tried not to cough too much, and we tried to say everybody's name so you could get to know us. But Leah is going to call out a couple of especially fantastic listener reviews that you all channeled to us. So Leah, I'm going to turn it over to you to highlight some of the best of the last couple of weeks. Pun watch 2019. I did just want to echo, Melissa, what you said, which is, you know, we were all really excited to start this podcast. And it is just so exciting and encouraging and like really touching to hear that people are also excited about the kind of podcast that we wanted to put together.

So I did want to highlight a few of just really enjoyable tweets and comments that we came across. So from the handle at Clever Handle 123. Very clever. Very clever. When it comes to SCOTUS podcasts, there are no other alternative channels of communication. An amazing pun on the strict scrutiny standard of review. Very nice. Very nice. Full marks for that one. Full marks for that one. Full marks for that one, indeed. Clever Handel actually had a couple that were very good. They did. So I also wanted to highlight one from at Colleen B. Barnett, who says, smart SCOTUS commentary, shade thrown,

tea spilled, subtle digs in the form of Case Citations. I am here for it. That is the vibe that, you know, we kind of wanted. So I really liked that one. Jamie, did you want to highlight a few of your favorites? So there was one which will give me the opportunity to wish luck to people taking the bar soon. So at Hannah Mora said, thanks, strict scrutiny, for reminding me that law is interesting and important and worth caring about when bar study is soul crushing and tedious and boring

and also very fantastic closing music. I loved the closing music as well. I'm not sure if that was you, Leah, or Melody, or just the combination of the two of you. But definitely good luck to everyone studying for the bar right now. I know it's really hard, but you can do it. And we will be here for you when you're done. I want to call

out at John Rutenberg, who on July 4th made my whole day. John writes in on Twitter to say, I enjoyed your inaugural episode, intelligence, expertise, and humor in a happy blend. As a bonus, I finally figured out that Stari Decisis is not a famous Van Gogh painting. That's what we're here for, John. We're just clearing everything up for you. Thank you so much for tweeting at us, for subscribing on your favorite podcast platforms. You can continue to follow the four of us on Twitter. You can also follow the podcast on Twitter. You can also follow the podcast on Twitter. And of course, you should subscribe if you haven't already done so on your favorite

podcast app. But for this episode, that's all the tea we have to spill. But don't worry, we're filling up for the future. And we will be back soon with one more episode before we launch officially for OT 2019. Thanks so much for listening. And thanks, as always, to our wonderful producer, Melody Rowell.