Strict Scrutiny - Light Conspiracy Theories

Episode Date: April 4, 2022

Leah and Kate catch up on all SCOTUS-related "antics" that happened in March-- including the latest in Ginni Thomas news [00:55], opinions [25:06], oral arguments [40:23], and non-Thomas-related news [52:56]. 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 legs. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court, Supreme Court spouses, and coup-adjacent activity swirling around all of those players. We are your hosts. I'm Kate Shaw.

And I'm Leah Littman. And listeners, it's here. We have carved out some time to discuss the latest quote, antics, as Ted Cruz would say, of none other than Ginny Thomas. We will also break down the court's opinions and some of the arguments from the March sitting. And Melissa is traveling today, and it kills me that she is missing this Ginny Thomas conversation. But fear not, I'm sure we still have more to learn about the coup-adjacent activity going on at Casa Thomas. So when that inevitably drops, when we learn, for example, maybe one of the Thomases was at these Coke-filled orgies that Madison Cawthorn has. Maybe if Ginny Thomas was on the other end of the burner phone that Trump was using on January 6th that the White House logs don't account for. We'll cover that

too, listeners. And we'll make sure that Melissa's schedule allows her to be here for the conversation. Exactly. All right. So in terms of where we are today, let's just recap a little bit of what we knew before the latest bombshell reporting. So just setting the stage, we already knew that Ginny Thomas was at the January 6th rally at the Ellipse that preceded the attempted insurrection at the Capitol. We know that she says she left because she got cold. And we also know she was shitposting on Facebook on the morning of January 6th, linking to articles about the Stop the Steal rally and writing Love MAGA people. And we also know she was agitating on the listserv for Thomas law clerks about overturning the election and Trump in the 2020 election. We also know that Ginny Thomas had had meetings with President Trump and Vice President

Pence in which she encouraged them to purge members of the deep state she deemed not sufficiently loyal to his administration. We also know Ginny Thomas has had meetings with other Republican officials who may also be in touch with Justice Thomas. It's not totally clear from the relevant emails about various ways to advance conservative causes. We know that at least once she hired an intern who came to live with the Thomases, who Justice Thomas then recommended to law school and for federal clerkships. We know the Thomases do discuss Supreme Court cases, although Ginny has said those discussions are only ever in, quote, very general terms. And we also know that Ginny Thomas has been involved with a host of organizations and with many different individuals who have business before the court, honoring parties to particular cases, being on the board of groups, filing amicus briefs. You know, we're touching on all of this at a high

level of generality, which is kind of glossing over some of the details. But as Jane Mayer's reporting made clear, she's all over a lot of organizations that regularly have business before the Supreme Court. But since we last discussed this topic, we have learned a lot more, specifically that Ginny Thomas was not merely a bystander or a cheerleader or just one of many attendees at this coup-adjacent rally. She was part of the team trying to overthrow the results of the election. And she was in touch with Mark Meadows, who was then the White House chief of staff, as part of that effort, as well as others. So the texts that we learned about also reference Jared, which I think could be a reference to Jared Kushner. Anyways, the Washington Post reviewed 29 text messages that show Ginny Thomas repeatedly

pressing Mark Meadows to pursue efforts to overturn the 2020 presidential election. Among the messages that Thomas sent, she was quoting a passage from right-wing websites that said, Biden crime family and ballot fraud co-conspirators, parentheses, elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, et cetera, are being arrested and detained for ballot fraud right now and over coming days and will be living in barges off Gitmo to face – I'm sorry, I can't get through this – to face military tribunals for sedition. End quote. tribunals for sedition. It's like the least important thing. It's the least important thing about this passage, but for some reason, fake stream media, which like mashes up the Sarah Palin lame stream media with the Trump fake media. What is the fake stream? It's a Ginny coinage, I guess.

It's incredible stuff. She's got a real way with words that Ginny Thomas, that Biden crime family living in barges off Gitmo. You know, this is a modern day Shakespeare. Whose pen is the text message? That is her quill. Exactly. She also expressed anger at Vice President Pence that she was, quote, disgusted with him for not trying to undo the results of the election on January 6th. And on November 19th, she wrote, sounds like Sydney, you know,

this is one of the lawyers trying to overturn the results of the election, and her team are getting inundated with evidence of fraud, make a plan, release the Kraken, and save us from the left taking America down. This is shocking for any number of reasons. So let's just tick through a few of them. One, Ginny Thomas appears from these text messages to maybe be full on QAnon, right? So she sent Meadows videos from a far right commentator who had falsely claimed that the Sandy Hook massacre was a false flag operation. The texts also refer to this extreme false conspiracy theory that Trump had watermarked mail-in ballots so he could track potential fraud. This was a big QAnon talking point at the time. And then we have the fact that her husband, Justice Thomas, participated in cases in which his wife could be implicated or could have some interest in how the cases are resolved. So we previously talked about the case in which the court denied getting involved or chose not to get involved in Trump's challenge to prevent Congress from getting some of the materials related to

January 6th. And guess who dissented and would have heard the challenge or blocked the materials from going to the committee? Justice Thomas. He was the only justice to note his dissent. Guess whose wife might have been potentially implicated in those materials. Same dude, Justice Thomas. Now, we should say that these documents, the ones that the Washington Post reviewed, were not in the tranche of materials that were the subject of the dispute from which Thomas dissented, right? So these were turned over to the committee by Meadows directly, rather than coming from the National Archives, that NARA files were the ones that were the subject of the case in which Thomas dissented. But, but, but, we have no

idea whether Ginny is in some of the communications that were in that group of documents, or frankly, what else she might have written or been involved with. Because the 29 messages that the Post reported on were part of the 2,000 plus pages of documents that Meadows turned over to the committee before he stopped cooperating. And sources told the Washington Post that they believe that these may be just a portion of the pair's total exchanges. So this is like, maybe they're like amuse-bouche. We have like an entire meal to come. And this is pretty wild as just like an opening salvo. So when we talk about future episodes in this ongoing series, I have no idea how crazy it could get.

No. And it's really, I think, shocking just when you think about it in terms of who was deciding these issues and what was at stake. I mean, imagine what we would be saying if we saw another government where the highest court heard a case and one of the justices decided a case in which their spouse might be involved or implicated. I mean, in that very case, Mark Meadows filed an amicus brief urging the court to block the records. I had totally forgotten about that.

Just like, I I just on principle, I think we should protect these documents. No stake that, you know, to speak of that I myself might hold. That's wild. It's really crazy. And I just worry that at some point, this is all so brazen and so out in the open.

It's just normalized. Like this is apparently just how our highest government institutions work. It is the worst form of institutional decay and institutional rot that they're corrupting these institutions and planting these seeds where I think it's very legitimate to have grave doubts about the legitimacy of these decisions, the propriety of the decision-making processes, and yikes. That's just one example, but Justice Thomas, of course, also participated in the cases in which the Republican Party was trying to overturn the results of the election, like the Pennsylvania

case, Republican Party of Pennsylvania versus DeGraffenried and other associated cases. And appeals to the Supreme Court were a big part of the strategy of the team trying to overturn the election. And Ginny Thomas was part of that team. I mean, she is participating in the development of cases designed to have or knowing that inevitably her husband will hear them. And it's just so brazen. It's really striking. And, you know, on a slightly less serious note, I also think the American people should know whether Justice Thomas similarly thinks that Joe Biden and his family will be, quote, living in barges off Gitmo to face military tribunals for sedition. I mean, you know, like something that I think is important to think about here is, I mean,

this is rank false conspiracy theory. And conspiracy theorists don't usually keep their conspiracy theories to themselves. Like, do you think at dinner, Ginny's like, I'm not going to mention the fact that Joe Biden is about to be living off a barge at Gitmo to face a military tribunal for sedition and all of this fraud is being uncovered, right? That's just not how it works. It's not. And it is like, it is obvious from everything she is writing that she is so fully bought into this completely unhinged theory. She thinks there is an absolutely existential threat to the Republic. How could she possibly justify concealing something like that from her husband? Like on the sort of internal logic that is on display as much as there is anyone can discern in these text messages, she would have an obligation to bring it all to him. So like, it's just so facially unconvincing. She needs to stop the left from taking America down. By whatever means are necessary.

Like all of that is obvious. And so for people to maintain, having reviewed these text messages, that they maintained this firewall between their respective operations is just laughable. It's obscene. There's no way. No. So we are obviously extremely worked up about this. I think everyone should be. I am not sure the kind of institutional responses that we have seen from, you know, Democratic leadership, for example, have met the moment, at least so far, right? So Senator Wyden has called on Justice Thomas to recuse himself from any January 6th related cases, but he already participated in the one we just talked about. And it's not clear to me that there's going to be more than just the occasional call for, you know, recusal totally within the discretionary judgment

of the justice. And I think this is a point that you've made, Leah, but I think it's right. They are, for whatever reason, members of Congress are scared of the justices. The justices have so effectively asserted their dominance and imperviousness to any outside controls that there's not even like clamoring for change that we're hearing from the Hill, let alone efforts at things like legislation. It's crazy. No, I mean, one of the wilder statements to me was Speaker of the House, Nancy Pelosi, reportedly said, quote, it's up to an individual justice to decide to recuse himself if his wife is participating in a coup. And I mean, you know. So I read but didn't hear the statement. I imagine she had, that had to be tongue in cheek, right? Like, I would hope so. I mean, I think what is

happening here is so fascinating because I think it reveals these kind of like two toxic dynamics that are intersecting here. On one hand, you have, I think the Democratic Party, senior members of the Democratic Party are institutionalists, right? They want to reinforce legitimacy of institutions. And so there is this principle that, of course, you don't want, like, members of Congress attacking, like, a Supreme Court justice or generally undermining the, again, institution of the court. But that's a general principle. And like any general principle, it's subject to exceptions. Like when the court isn't acting like a legitimate

institution, then you are reinforcing the legitimacy of the institution when you try to make it act legitimate. And then the other dynamic that I feel like is at play here is related to something that's playing out a little bit more clearly in the political branches. And that is this fear that Democrats need to shore up or reinforce principles that the Republican Party is damaging. So, for example, we're seeing that in the context about when, if ever, it might be OK to prosecute like a member of the opposing political party. And, you know, Dems, after seeing what Republicans tried to do with Hillary and the Benghazi hearings, or what Republicans are trying to do with Hunter Biden,

are falling back on this notion, this principle that, again, I think in broad strokes, in many cases is right, which is, it is undemocratic and concerning for members of one political party to prosecute or make it more difficult for members of the opposing political party to like exercise, obtain political power. On the other hand, that doesn't mean if people on the opposing party are like literally shooting people on Fifth Avenue, you shouldn't do anything about it. And I just feel like all of these dynamics are combining in an extremely toxic way where Dems are just, again, not doing anything about this very open, brazen corruption and decay. And so they're normalizing it. And they are, again, in the process, like undermining our institutions. And it also like this kind of practice hardens into something that's like a norm. And then it has established.

And I totally agree. And I also think that to the extent that one norm, and then it has established. And I totally agree. And I also think that to the extent that one has, and I definitely do have some institutionalist tendencies, I also think like, the logic is, in this case, is exactly backwards, which is to say, it is extremely damaging if you care about the institution of the Supreme Court, which we can debate whether we should care at all about preserving the legitimacy of the institution. But if you do, right, if we're stipulating that part of the reason for hesitation is caring about the legitimacy of the institution, it's horrible for the legitimacy of the institution to sit idly by while this is happening. You could imagine like navigating these tensions, if you're democratic leadership, by saying, look,

we can disempower and also like demystify the Supreme Court in pretty important ways without necessarily embarking on a project to delegitimize the institution. This is aberrant behavior. It needs to be called out. And I totally agree. Now, AOC did suggest that it's worth talking about impeachment with respect to Justice Thomas. And obviously, many, many, many things would have to happen before that would ever be realistically pursued. But to be fair, we should say there are definitely some outlier members of Congress who are not taking this lightly, but leadership seems completely unperturbed by it. And I have been thinking, you know, you mentioned obviously the Supreme Court being part of the litigation

strategy in the period between the election and January 6th. I mean, remember on election night itself, when Trump came out at like three in the morning or whatever it was, and started talking about how we will, and frankly, we did win this election, like it was a totally deranged speech. But he was talking from that moment on, on election night, about going to the Supreme Court. And periodically in that interim period, as he was waging this, you know, campaign across state legislatures and state executive branch offices and state courts and federal courts, he routinely mentioned in public remarks, the Supreme Court basically kind

of saving him. And every time I said, I was like, this guy is completely out of his mind. But now you're like, why was he so confident that he was going to have a sympathetic ear at the Supreme Court? There is more to it. And this is the sort of like fomenting the distrust in our institutions and undermining their legitimacy that we're talking about and we should be concerned about, you know, because they're giving us a reason to think that, again, it's all, right, even more corrupt than even, you know, someone as, let's say, jaded as I think it is. So in terms of institutional players pursuing some measure of accountability, we should say the January 6th committee has been very active.

And at least for now, there have been some non-Ginny Thomas-related developments coming out of the committee. And the first that we should flag is that earlier this week, a California district court judge issued an opinion rejecting former law professor John Eastman's efforts to keep his emails from the January 6th committee, right? He asserted that they were subject to attorney-client privilege. And the court found that Trump and Eastman corruptly conspired to disrupt the official proceedings of the final election certification on January 6th, and also to interfere with the certification process, and that the emails produced in furtherance of that scheme

were therefore subject to what's known as the crime fraud exception to attorney-client privilege or attorney-work-product doctrine. And it's a pretty wild opinion in that it just kind of pulls together this unbelievably damning narrative about Trump, of course, but Eastman as like an extremely important and active partner in the entire scheme, and basically ends, of course, but Eastman as like an extremely important and active partner in the entire scheme. And basically ends, I mean, if you'll indulge me, I'll like read the last paragraph of the opinion because it's pretty powerful. It says, Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower. It was a coup in search of a legal

theory. The plan spurred violent attacks on the seat of our nation's government, led to the ivory tower. It was a coup in search of a legal theory. The plan spurred violent attacks on the seat of our nation's government, led to the deaths of several law enforcement officers, deepened public distrust in our political process. More than a year after the attack on our capital, the public is still searching for accountability. This case cannot provide it. And it goes on. But it's a very, very powerful opinion. Now, I don't know. Eastman has suggested that he will cooperate. I don't know if he's going to appeal. But at least for now, those materials need to be turned over with a couple of exceptions. The court ruled that a few were subject to legitimate privilege assertions. So there's that development. The committee also voted to hold in contempt and to refer to the Department

of Justice for potential criminal contempt charges to former White House officials, Peter Navarro and Dan Scavino. We don't know if DOJ will pursue charges. It has for Steve Bannon, but Bannon wasn't a White House official at the time of the conduct in question. So there's the Eastman case. I don't know if that's done or that's going to go up. There are potential cases involving these witnesses. There's a civil suit against Trump brought by the families of some Capitol police officers in which he's asserting absolute immunity. And so far, you know, and lost a motion to dismiss in that case, that could go up. So, you know, there could be very significant January 6 related cases before the Supreme Court in the relatively short term. And

at the very least, it would be intolerable for Thomas to participate in any of them. Absolutely. So that pressure has to stay on him and on the court as an institution. Yeah. And I think the committee has also said they want to talk to Ginny Thomas. It's not exactly clear what form that will take, but that could be another future development as well. Yeah. We'll be right back. back to the supreme court we got some opinions and argued cases that we wanted to cover one was ramirez versus collier this case was the religious liberty challenge to texas's execution protocol that protocol prohibited people from having their spiritual advisors audibly pray in the execution chamber or to touch them in the execution chamber. So the court, in an 8-1 opinion by Chief Justice

Roberts, concluded that both aspects of the execution protocol likely violated the Religious Land Use and Institutionalized Persons Act, which is a federal statute extending the Religious Freedom Restoration Act, or RFRA. So the Supreme Court concluded that Ramirez's religious beliefs were sincere, that Texas's policies burdened those religious beliefs, and that Texas had other ways of accomplishing its objectives like security in the execution chamber. This was the case that was briefed in part by the Supreme Court Clinic at the University of Texas Law School. Professor Lisa Eskow, who heads that clinic, joined us to debrief the case in a previous episode. We also wanted to congratulate the many students in the clinic who worked so hard on the case on a very

expedited schedule, including Zoraima Pelaez, who helped organize our live show at Texas with Professor Eskow and Bonnie Devaney and so many others. So I was very happy to see this result. And it wasn't a result that was necessarily very clear was going to happen after the argument when several justices were freely speculating about the sincerity of Mr. Ramirez's religious beliefs, as well as they expressed a desire to defer to prison officials about, you know, how these executions should be carried out. It was a welcome outcome that wasn't totally clear from the oral argument.

Just a couple of additional thoughts to share about the opinion. One, despite I think it obviously being correct, I did find something. So it's a Roberts authored opinion. And there is something just like so chilling about the clinical nature of the discussion, the kind of location and placement of the spiritual advisor vis-a-vis the condemned individual like in the execution chamber. Like just there's a passage that talks about how under Texas's current protocols of the prisoner's body well away from the site of the iv line would meaningfully increase the risk and then there's you know there's this just like a conclusion line which says something like it's possible to accommodate his sincere religious beliefs without delaying or impeding his execution we conclude the balance of equities and the public interest favor his requested relief

it just seems like somehow so perverse to be talking about the balance of equities when this individual is definitely going to be executed by the state, which is not to say this is a significant win for him in terms of the conditions in which the state will execute him. But I just had such difficulty with the tone, despite totally agreeing with the bottom line outcome. Justice Thomas was the one dissenter. Do you think he and Ginny talked about the case?

Definitely not. I mean, maybe at a high level of generality once the opinion was issued, but certainly not. But she might have been texting with Mark Meadows and Jared Kushner and Ron DeSantis and a bunch of other people about it. And the future Thomas clerks that might be living with them. Who knows? Who knows? It's all good. Oh, yes.

Whether or not Ginny had input, this was like extra thomas thomas in this dissenting opinion right like it was gratuitous descriptions of the crime that led to the death sentence there was a long recitation from the victim's family's amicus brief which must be something we've seen before but i couldn't remember having seen that these like sneering dismissals of the sincerity of ramirez's religious beliefs, accusations of delay and vexatious litigation, kind of like the greatest hits of any death penalty case. But interestingly, that even like Alito wouldn't join him. Yeah, I know. Sam Alito going real soft, voting for the defendant in Wooden against the federal government and for a death penalty litigant in Ramirez. We're recording this on April Fool's, but these votes were cast before April Fool's. So I don't think this is a giant

troll. I am curious, though. We should get ready to sort of like start reading these like Sam Alito moderating in his golden years takes on the Supreme Court. Right. Sam Alito casts the decisive vote not to overrule Roe versus Wade. JK, that's a joke. That's not happening. Definitely, definitely no. The next case we wanted to briefly describe is the court's opinion in Houston Community College versus Wilson, which was a First Amendment challenge to the Houston Community College System's Board of Trustees censure of one of its members. We previewed this case at some length. The plaintiff, David Wilson, one of the board members, argued that his censure had violated his First Amendment rights. And the court held that the censure, which is itself a form of speech, did not give rise to

a viable First Amendment claim. So this is a unanimous opinion authored by Justice Gorsuch, strangely devoid of obnoxious rhetorical flourishes, strangely sensible. I didn't know what to make of the opinion that seemed basically right and pretty straightforward. It leaned heavily on history, but again, not in an obnoxious way. Just kind of noted how common censures are in Congress, even more common in state and local legislatures. Someone's putting like horse tranquilizers in Neil Gorsuch and Sam Alito's coffee. And there's no other explanation for this. Okay. Yeah. But wait,

ivermectin is not a tranquilizer, right? There's no ivermectin. It's not their home remedies. Do you think that's why Justice Thomas was hospitalized? For wait, for COVID or ivermectin? Ivermectin. I mean, he coughed a lot in – he sounded good. Like, he sounded like himself. I certainly don't think he's in any kind of danger. But he was definitely coughing in the Wednesday argument, like, kind of hard. So ivermectin-related infection.

If Ginny Thomas can do some heavy conspiracy theorists, I can do some light conspiracy theory on this podcast. Well, definitely text me and Melissa, like all the weird ones after we're done recording. Who do I think is going to be living off barges off of Gitmo? It was a fairly narrow ruling in that the court said if the board had tried to impose different kinds of penalties, like expulsion from the board or disqualification from future office or something like that, the First Amendment analysis might have looked different. But in that it was just a censure that the court was addressing, he clearly lost and nobody peeled off even to concur. We also got an important opinion on the

shadow docket that we should talk about in a Wisconsin redistricting case. So not surprisingly, there is more lawmaking, more law changing on, you know, what we are coming to call the election shadow docket. So this time, the case involved Wisconsin's state legislative map. So the brief background here is that following the 2020 census, Wisconsin, like every other state, needed to redraw its legislative districts to account for population shifts. So the legislature proposed a new state legislative map. Wisconsin Governor Evers vetoed that map. And then some state and federal litigation ensued. Federal lawsuits were put on hold, and the Wisconsin Supreme Court asked the parties

to the suit, who were like the legislature, the governor, and then some other parties, to propose maps. So the legislature proposed a map that, as most relevant here, decreased the number of majority Black districts from six to five, and Evers proposed a map that increased the number of majority Black districts from six to seven. So Wisconsin Supreme Court takes, you know, these proposed maps under advisement, and in an opinion by Justice Brian Hagedorn, right, no one's idea of a liberal, the court endorses Evers' map as satisfying

the requirements of the federal and Wisconsin constitutions. And the GOP legislature, you know, which wanted its map, asked SCOTUS to intervene, and the court agreed, right, vacated the Wisconsin order, adopting the governor's map, remanded for the court to take another crack. And it did that even though it basically said Wisconsin had used the right standards, like that said strict scrutiny applies to this race-conscious map drawing. It said, you know, we're going to accept the compliance with the Voting Rights Act is a compelling government interest, that Section 2 of the Voting Rights Act prohibits drawing maps to dilute the voting power of minority voters. But it basically said that Evers didn't, or the Wisconsin court

didn't, it said it wasn't totally clear whether the court was explaining why Evers' map looked the way it did or whether it was sort of deciding for itself how the map should look. But in either event, it didn't require enough of a showing that the need to have a seventh district, that it was narrowly tailored. And maybe it wasn't clear enough that the court or Evers thought the compliance with the Voting Rights Act definitely required the deliberate creation of this seventh district. What the court is clearly doing is error correction and not even correction of an obvious error under existing law. And it is just a completely unprecedented use of the shadow docket for those reasons. And I think it's also unprecedented because the way these sort of challenges usually work is after a map is drawn, then it's a second case that's usually brought to challenge the map as, you know, an unconstitutional racial gerrymander or, you know, not satisfying the appropriate legal test for using race in redistricting. And here, the Supreme Court just basically collapsed those two things and said they all had to happen in the same case at the same time, which also is a quite significant change from how these cases and issues usually proceed. Right. And so to Maior and Kagan in their appropriately horrified dissent to point this out, right? Like there was every opportunity for challenges to the map after approval of the map and the court was just so eager that it didn't want to wait. And it is also

worth pointing out that by throwing out a map like this, the court 100% appears to be violating its so-called Purcell principle, right, which says federal courts should not throw state elections into doubt or mess with state elections too close to the elections themselves. Purcell is the reason the court gave for throwing out an injunction of a racially gerrymandered map in Alabama. The district court had issued an injunction. Court said, no, that was a problem under Purcell, or the concurrence anyway, explained that Purcell was the reason the district court's action, you know, was impermissible because it was too close to the election. So the district court opinion in Alabama was too close to the election because it was four months, but we have the Supreme Court intervening here. And apparently that's fine because it's five months. Like, is that the difference? Or is it

that the court thinks that this Purcell idea that you can't mess with elections too close to elections applies to just to federal district courts and not to federal appeals courts or to the Supreme Court? Like, what do you think it is? Like, whatever is convenient for them to point to? I mean, that could be it. and suggests that I actually think what the court did here was partially to avoid a possible Purcell issue down the line. Because as we were just saying, what usually happens is, you know, the legislature or the governor or the state court will draw a map. And then at time two, some new plaintiff usually brings a challenge and says, like, this map makes too much use of race and is therefore unconstitutional or violates the Voting Rights Act. And the Supreme Court basically, I think, didn't want to wait for that second case to happen so as to avoid a situation where a court

was altering the districts closer to the election and then having to confront a possible Purcell issue there. And so in its eagerness, because it's so desperately wanted to slap down these new districts, because it doesn't believe that compliance with the Voting Rights Act is a compelling interest, or like whatever the reason is, because it believes all uses of race are inherently bad, you know, whatever, they just said, well, we need to do this now. And I think, you know, whatever. They just said, well, we need to do this now. And I think, you know, this is a theory that Commander Professor Steve Flattick has floated, and it underscores the critiques of the shadow docket, which is, it's all just machinations by the justices about, well, here's the bottom line that we want to bring about,

and here are the results, and we're just going to do whatever it takes to get there. Yeah. Do you want to talk about the other significant shadow docket case we got? Yes. So this was the case involving the president's ability to be the commandermaking and prohibited the Navy from disciplining or removing from command those Naval officers who refused to comply with Navy orders, specifically obtaining the COVID vaccine. A district court had said the Navy's vaccination requirement violated the officer's First Amendment rights and also prohibited the Navy from taking vaccination status or compliance with vaccination orders into account when making personnel decisions. That was insane. It resulted in naval ships being inoperative since the Navy

didn't want to deploy a ship under the command of an insubordinate officer. And the federal courts basically said, well, that's your only option. Make the ship inactive or put it in charge of an insubordinate officer. The officer was one, but a lot of these other objectors are just people who would be on a ship. And it's like, you remember the early COVID days? There's a lot of COVID spread in like tight quarters on boats. The Navy didn't want to send any of its ships out with vaccine refusers in the ranks. Make the naval fleets the next cruise ships, right? Like that's what it means. The district court's basically directing. Yeah. And you know, we finally found a Fifth Circuit decision that is actually too insane for the Supreme Court. Six justices on the Supreme Court do believe that Democratic presidents get to be the commanders in chief of the Navy. You know, we learn something new every day. Justice Alito, Justice Gorsuch and Justice Thomas apparently, however, disagree. They do not believe that Democratic presidents get to be commanders-in-chief of the Navy and enforce orders.

Also, I just want to note the oddity that Justice Thomas voted for the plaintiffs here in this religious liberty challenge and against Mr. Ramirez. You know, who gets to have sincere religious beliefs and who does not is a perpetually interesting question, I guess. Yeah, at least Alito and Gorsuch side with religious liberty in both cases. Thomas is just like, it's impossible to come up with something great. Again, it's the horse tranquilizers that someone put in their coffee, right? It's tamed them a little. It's toned it down. Yeah, yeah. I think this is the only explanation.

Right, exactly. So the case went back to the district court, and the district judge in this case said, well, the Supreme Court's opinion only involved deploying an assignment, I can still stop the Navy from discharging sailors who refuse the vaccine. junction in the case in a way that to me was quite reminiscent of how the Fifth Circuit has gotten around the Supreme Court's opinion and the SB8 litigation by saying, well, you Supreme Court thought that the medical licensing officials had authority under SB8, but the Texas Supreme Court might disagree. And so we're going to send the case over to them. So that's what's going on there. Yep. Okay, so let's pivot to argument recaps. And as we previewed before the sitting, the court heard a bunch of arbitration cases this sitting. First, Carla Gilbride argued for the employee in Morgan v. Sundance, which is a case about whether an employer raised the arbitration agreement too late in the proceedings to force the employee out of court and into arbitration. The employer had participated in the litigation in federal court, and only after losing some arguments did it then seek to require arbitration.

So Gilbride is blind, and she took Braille notes up to the podium. This might have been the first time this has happened, although I'm not positive. It definitely was her first Supreme Court argument, although I think she's done like 50 in the courts of appeals. And she was absolutely fantastic. Literally hire her to do all of your Supreme Court arguments. I've never met her, so I don't know her. I am just saying she was so good. So maybe let's play a short excerpt from her argument here. So please get me out of this box that you put me in. I will try, Justice Sotomayor. So the first question is under state law, particularly if, as here, a waiver defense has been interposed by one of the parties.

That's a generally applicable contract defense. It should be analyzed under state law. If the party who wants to belatedly arbitrate, even though they've acted inconsistently in the past, they filed a motion under Section 3 that has two inquiries. The first is, is the agreement or is the issue referable to arbitration under an agreement in writing? That again, I think, contains a state law inquiry. How would you know if it's referable to arbitration under an agreement in writing other than looking to state contract principles, including waiver, if applicable? But then the second question under Section 3 is the one I was speaking with

Justice Kagan about, and that, I think, is a separate independent obligation that Congress placed on the court reviewing a Section 3 stay application. It doesn't matter if anyone's pled waiver at all. Is the applicant for the stay in default in proceeding with the arbitration and if that is a statutory inquiry if the type of defaults Congress was talking about was taking too long being dilatory in proceeding with arbitration as inconsistent with the FAA's intent of moving parties as this court said in Concepcion, to facilitate streamlined procedures, to getting into the arbitration proceeding quickly. Excuse me for interrupting you. So speaking of women doing it for themselves in arbitration cases, also wanted to give a shout

out to Jennifer Bennett, who argued in Southwest Airlines Company versus Saxon and appears likely to convince the justices that ramp agent supervisors working at airports are likely exempt from the requirements or restrictions of the Federal Arbitration Act. So another just terrific argument. And the third arbitration case that the court heard was Viking River Cruises v. Moriana. That's a case about California's Private Attorney General Act. So California's labor law allows private individuals to bring suit on behalf of the state and receive awards, 75% of which go to the state. And the question in this case

is whether the Federal Arbitration Act allows employers to say, you individual employee can't bring those representative PAGA claims in federal court or even those representative PAGA claims in arbitration proceedings. It would be a shockingly hegemonic take on the Federal Arbitration Act, basically prohibiting states from creating certain kinds of causes of action or enforcing their laws in particular ways. But who cares about federalism or textualism when you can go ahead and immunize some corporations from liability? One person who seemed to care about both federalism and textualism was Justice Kagan, who was like, what the F is this? So let's play that clip here. It is a commonplace of preemption analysis. But,

you know, in our in our best moments when we use preemption, we do it based on something that a statute says. And there's nothing that this statute says about arbitration procedures that would that, you know, reasonably understood extends to a state decision like this one to enforce its state labor laws through private parties. Yeah, when you just said that, Leah, it reminded me of Carrie Franklin's minor and major preferences point. It's like, ah, you know, when you want to do federalism and you want to do textualism, but you really want to immunize corporations for liability. Sometimes you got to make trade-offs. Right, exactly, exactly. So the court also heard argument in Berger versus NAACP, which is the case about whether state officials can intervene in litigation if they don't like how other state officials are conducting

that litigation. Here, the litigation was over North Carolina's voter ID law. Another awesome advocate to flag, Sarah Boyce, was fantastic arguing for the North Carolina Attorney General. Also, like Carla, a first-time advocate. Carla was sort of laughing in the clip that we played. This one involves not just laughter, but actually making jokes with the Chief Justice. Your first time out. We salute you. So let's play that clip here. I do quickly, in whatever time I have left, want to push back aggressively against the notion that North Carolina would be free to simply abolish the Attorney General. It may be true that that would be permissible under federal law. It would clearly not be permissible under North Carolina state law. The Attorney General is a constitutional officer who is identified as the chief legal officer of the state of North Carolina. And of course, statutory law reinforces his obligations. But the state of North Carolina could not simply delegate his responsibilities to

someone else. I'm sure your bosses will be happy to hear that that was your position. I believe I would have been remiss if I did not mention that. In the less impressive variety, Judd with 2D's Stone was back at the Supreme Court arguing that Texas couldn't be sued. So Judd with 2D's Stone is the Texas Solicitor General who appeared on behalf of Texas in the SB8 litigation. He was also the person arguing against Mr. Ramirez and defending Texas's execution protocol in Ramirez v versus Collier. And in this case, Torres, Judd with 2D Stones, was arguing that Congress could not authorize suits against states when Congress was exercising its war powers. The notion that Congress couldn't authorize these

suits rests on this fiction that's called state sovereign immunity, where the idea is states enjoy immunity from suit under the Constitution, unless, you know, some part of the Constitution abrogates their immunity, or effectively the states consented to suit or waive their immunity as part of a particular provision in the Constitution. And the court's cases in this area are just all over the map and completely nonsensical. And again, Justice Kagan was all over pointing that out. So let's play that clip here. I just guess taking a subset of Justice Kavanaugh's question and just focusing it on the eminent domain power,

I mean, in what world could it be a sensible result to say states can be sued on the basis of the eminent domain clause, but not on the basis of war powers? I think it's a creature of the plan of the convention test, which goes specifically granularly to whether or not the states understood that this kind of judicial process would be worked against them. Well, weren't war powers kind of the plan of the convention? I mean, what was this all about, except to ensure that war powers were held by the federal government and not by any states? I mean, again, the idea that Congress could authorize suits against states when exercising its bankruptcy powers, but not its fucking war powers. I mean, it's just like, you state the argument is to refute it. And yet, this is

apparently what originalism looks like now. You just say plan of the convention lots of times, and the analysis doesn't. You just say it's in the plan of the convention, Your Honor. That means I win. Honestly, like this, you should start doing this in federal arbitration act cases, right? The plan of the convention is corporations can never be sued in court, Your Honor. The plan of the convention. But I do think that that's that literally was just like the plan of the convention, plan of the convention. Let's just keep saying and maybe maybe we'll convince someone. But it was a fun, you know, it's rare that you hear an argument that pulls in this many parts of the Constitution. Like we're talking war powers, we're talking 14th Amendment, we're talking Commerce Clause, we're talking coinage, we're talking bankruptcy, we're talking copyright. There was just like a lot of very ranging kind of wideanging discussion about both the court's, yes, like completely muddled state sovereign immunity jurisprudence with respect to all these different kinds of congressional powers. And also this novel question in the war powers context, court has not confronted it. So totally fascinating argument. Justice Breyer was in rare form. Of course he was.

So Justice Breyer channeled Lin-Manuel Miranda. So let's play that clip here. Okay, now there are three arguments that have been brought up, and I'd like to hear if you have something to add. The first is the plan of the convention. As you've read biographies of Washington and the founders, you know perfectly well that they were terribly upset at the way the states were behaving in respect to the Continental Army and thought that that was causing the United States basically to lose almost. And they were at a convention, and if I put the matter in a comical way, because it's not meant totally comical. In the play, they say George III says, they'll be back. Wait and see. They'll come crawling back to me. And that was in the Framer's mind, though not the music.

Crawling back to me, SGB. You gotta love it. I'm always, I would love to play more Hamilton in my con law class than I do, but I feel like Breyer just basically told me, like, just do it if you ever think it might be appropriate. Toss a little clip from one of the cabinet battles. There's always a hook, it turns out. Yeah. Do you? Do you make lots of Hamilton references in constitutional law? Honestly, not that many.

No. A little bit when we do the spending power, a little bit when we do the bank. I once played a little bit, a little clip from Election of 1800 before teaching Marbury, which was actually, I think it went over pretty well. But like, you know, time is always short. So like a two minute musical break is not always in the cards. Right. So one more kind of Justice Breyer moment we wanted to highlight from a case called

Ladur versus Union Pacific Railroad Company, which involves the Locomotive Inspection Act. The question there is whether a train that is parked in a train yard is in use, which matters for purposes of tort liability. So I think we're going to be even more indulgent than usual of Justice Breyer's hypos and interventions in the time that remains this term. But anyway, he had a classic moment during that oral argument talking about a classic children's book. So let's play that clip here. When I was a child, there was a book called The Little Engine That Could. There still is.

This engine got to a hill. And it goes up the hill, and suddenly it stops because it can't go further. But it thinks, I think I can, I think I can, I think I can. And eventually it does. Okay. Now let's take the period, I think I can. There it is, not moving. And on your view, here it is. You say on page 1516, is moving under its own power in active service. Yes. Not the little engine that could. Not during those periods.

He was saying, I think I can. I think I can. So do you really mean? I mean, that's the same as the lunch question, really. It's just. No, I think I actually think that it's quite different, Justice Breyer. Being extra indulgent is the way we get him to say yes to the Mench on the Bench segment where he offers advice to listeners who write in. So it's all part of the plan of the convention slash plan of the podcast. Okay. All right. That's good.

So maybe we'll wrap with a little bit of non-Ginny Thomas related news as just a palate cleanser. That's probably a good idea. The Supreme Court rules got like, I mean, overhaul is kind of strong, but the court proposed some new rules, not like of the ethics or recusal variety, sigh, but like a few wonky rules governing practice before the court, one removing the requirement that people who file amicus briefs get the consent of the parties before doing that. One setting out rules for amicus briefs on the shadow docket. There had been such briefs previously, but the court is kind of more formalizing those procedures now. Really, really sort of wonky law nerd change is the jettisoning of the use of the

term, I don't even know how to pronounce it, passum, possum. You never say this word. Anyway, a change in citation practice in Supreme Court briefs. But, you know, the big rule changes that the Supreme Court ought to be considering, nowhere to be found in these proposed rules. No. Since the court's last sitting, Justice Thomas was ill and hospitalized with what the court's public information office described only as an infection. The court said it was not related to COVID.

Justice Thomas was totally absent from the court's proceedings for a week, though the chief justice, when announcing his absence, said he'd still participate in the decision in those cases. Then during week two of his illness, when he was discharged from the hospital, he participated by phone, sounding perfectly normal and vigorous. So, you know, we're kind of thinking he's fine, but it's still, you know, completely shrouded in all of this unnecessary secrecy about what exactly is going on. It's clearer and clearer to me that he, we only found out that he was in the hospital at all because it happened to coincide with the

sitting of the court. Like they just would never have said anything if they could have concealed it. And I'm saying they as if it's the court's public information office, but I think it is really the justices themselves who make these decisions about what the PIO will tell the public. And I think Thomas just like wants to say as little as humanly possible, but his absence was going to be noted. And so at that point he had to say something. But it was interesting when the chief said, Justice Thomas isn't here, but

we'll be participating. He very conspicuously didn't say anything about why. Remember when, like, you were talking about Gorsuch's tum-tum being upset? Like, it was because the chief said something about him having a stomach bug. Like, but I guess that's because Gorsuch authorized it. And I think Thomas was like, don't say anything you don't have to say. Right? Right?

Yeah. Just tell him I'm not there. Someone needs to give that guy whatever horse tranquilizers are being fed to Neil Gorsuch and Sam Alito because I just think that that would help. Yeah, it might. So we will also apparently be getting a Judiciary Committee vote on the nomination of Judge Ketanji Brown-Jackson to serve on the Supreme Court on Monday, April 4th. Very exciting. Linda Greenhouse has a wonderful New York Times column about whether Republicans, you know, the larger Republican caucus are going to be complicit in the Republicans on the Judiciary Committee's treatment of Judge Jackson during the nomination

hearings, which I just thought was really excellent. It was a great column. We do know since we last recorded an episode that there's at least one Republican who's going to vote for KBJ, Susan Collins. I think there are a few we still have to hear from. So it could be an even more bipartisan vote, but it does look like it's at least going to be a bipartisan vote, which, you know, again, it should be a unanimous vote. But I am glad that Susan Collins at least is going to definitely vote for her. Yeah. A regular reminder to our listeners that Justice Samuel Alito's birthday is April 1st. I just, I can never get over that. It just seems so fitting. And I'm just waiting for him to like pop up at some argument, no? Long, long game.

Right, exactly. Huge, huge long game. A notable decision from a Florida district court invalidated some of Florida's voting restrictions. The court concluded those restrictions were invalid because they discriminated on the basis of race. Notably, the district court said because Florida had a history of discriminating on the basis of race in voting, it opted to put the state back under the supervision of the federal government in what's called the preclearance regime of the Voting Rights Act, basically requiring the state to obtain federal permission before making any changes to their voting laws. Don't want to sugarcoat this, There's zero chance this opinion survives review in the 11th Circuit or the Supreme Court. But this is a great opinion, right? The legal analysis is terrific. It's observations about the state of the world right now. It's invocation of Dr. King on voting rights. It's just superb.

And it's by a Judge Walker, a district judge in Florida, very much worth checking out. One other piece of news, a challenge to Florida's Don't Say Gay Law was filed by lawyers at the law firm Kaplan Hecker Fink. That is the law firm that is led in part by Robbie Kaplan, the lawyer who argued and won Windsor v. United States, convincing the Supreme Court to strike down the Defense of Marriage Act. Also on the briefs are another lawyer at the law firm, Joshua Matz. The complaint is excellent and fantastic. The plaintiffs in the case are very brave for participating in it. Unfortunately, you know, the case has been assigned to a district judge who was nominated by President Trump. And that district judge participated in the defense of Florida's laws discriminating against same-sex couples in marriage. And I think, you know, what this underscores is something we've highlighted on the show, this asymmetry in judicial nominations between the parties. You know,

the Republican Party was appointing people specifically because of their involvement in anti-LGBTQ litigation, anti-reproductive rights litigation. Those are not the people the Biden administration is appointing to the federal courts, the people pursuing LGBTQ civil rights through the courts or the people trying to save reproductive rights and justice. That's notwithstanding how terrific, you know, all of these Biden nominees are, but it really would be nice to get some balance on this. Right. What Leah is saying is Biden, you coward, put Joshua Matz and Julie Rickleman on the federal bench now. Yesterday. There are many unfilled court of appeals seats.

There are. Like that pipeline, right? Like there's not a lot of, even for the Senate, could take up at this point, right? Like now there's a real bottleneck at the nomination point. And there are a lot of vacancies. Yeah. After Monday, when the Judiciary Committee votes on Judge Jackson, I want to see a slate of like 50 nominees on Tuesday. And that slate should again include Joshua Matz, Julie Rickleman, TJ2. I could go on many others, but- That's a good start though. Yeah. I did three out of the 50. We can go from there. So probably all we have time for.

Let's close it out. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Littman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Audio engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez,

Sandy Girard, and Ari Schwartz, with digital support from Amelia Montooth.