Strict Scrutiny - Making Fraud Great Again

Episode Date: December 5, 2022

Melissa and Kate recap oral arguments in a couple of cases that could limit the reach of federal fraud statutes, plus an immigration case out of Texas. And of course, there's the latest story out of the New York Times, spilling the tea on a years-long effort by conservative activists to ingratiate themselves with Supreme Court justices.On December 6th, the Supreme Court will hear arguments in Moore v. Harper, a case about the independent state legislature idea/thingamajig/fantasy. We've covered it extensively, so catch up on previous episodes before the chaos is unleashed on Wednesday."Debunking the Independent State Legislature Fantasy" with Jamelle Bouie and Carolyn Shapiro"Turning Fan Fiction Into Reality" HUGE reminder that it’s run-off time in Georgia. Early voting started Monday, November 28th for the December 6th election. That’s TOMORROW. If you're a Georgia voter, head over to votesaveamerica.com to make your plan.And if you want to help out no matter where you live, you can donate and find remote and in-person volunteer opportunities to make sure the Warnock campaign has the resources it needs.51 senators means the difference between a true majority, or being faced with another 2 years of roadblocks like problem children Kyrsten Sinema & Joe Manchin. Make sure that every Georgia voter can make their voice heard again at  votesaveamerica.com. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Melissa Murray. I'm Kate Shaw. And Leah is away today. She is taking a little well-deserved downtime after a bear of a semester, so we

will muddle through without her. But fear not, she will be back with us next week. But we have a lot to cover today, so we're going to dive right in. The court is currently halfway through its December sitting, so we're going to focus on recapping the cases the court heard last week, and we'll say a few things about the cases the court is set to cover this week. And we'll then spend some time on additional developments in, dun-dun-dun, Alicogate, that's what we're calling it. And then we'll walk through some other news and culture grants, activity on the shadow

docket, and some notable developments in the lower courts. But first, an erotum of sorts, a mea culpa, if you will. In our last episode, when we covered 303 Creative versus Alanis, which will be argued this week at the court, we mentioned Employment Division versus Smith, the embattled 1990 decision concerning free exercise of religion. In explaining the Smith decision, I misspoke and said that all of the Republican appointees on the court were in the majority in Smith. But while the majority in Smith included Scalia, Rehnquist, Stevens, O'Connor, and Kennedy, it did not include Justice Brennan, an Eisenhower appointee who dissented from the majority opinion, and Justice Blackmun, a Nixon appointee who concurred in part and dissented in part. So I was wrong. It was not all of the Republican appointees, but it was all of the court's members who I think we could classify as conservatives. I mean, I think

I don't always think about Justice Brennan as a Republican appointee, because he really kind of never stayed with it, which reminded me of something else. So I did an event with Ellie Mistal recently. And one of the things that Ellie noted about the court and its current composition is that the Republican Party that has nominated these justices is just very different from the Republican Party that nominated justices 40, even 30 years ago. And Brennan and Blackmun are kind of exemplary of that impulse. Like they're Republican appointees, but moderates in many ways, and in Brennan's case, a true liberal. Or Justice Stevens. I mean, yes, your justice is a perfect example of that. And so perhaps I could be forgiven for

forgetting that they were actually appointed by Republicans. And also the moment that we're in right now is one in which for the first time in history, we have perfect alignment between the ideology of the justices and the parties of the appointing presidents. But that was not always the case. So you're right. Good reminder. One of our eagle-eared listeners wrote to me and I was like, yep, you're right. I went and looked at the transcript. I'm like, my bad. So here we are. My bad. I will be more precise in the future and just basically call everybody out by name and let you do the work. You can do the work. Our listeners are the best. They really are. They keep us honest. And you know what? We

keep the court honest. So let's keep going. On to the recaps. So let's start with two of the fraud slash political corruption cases that we previewed last week. I thought you were going to say, let's start with two of the frauds. The frauds on the court. Fraud cases. The fraud cases. I know, it's hard to know with just that snippet. Fraud on the court and fraud cases. Before the court.

Yeah, so these are fraud cases before the court, both of which the court heard argued on Tuesday. And just to remind you what they're about, so Percoco is about whether a former government official who had plans to return to government after a stint on a reelection campaign can be convicted of fraud for receiving a payment from a developer to pressure a state agency to award funding to that developer's project. You'd think the answer is clearly yes, but stay tuned. The other case, Simonelli, is about whether it is a violation of the federal fraud statute to manipulate the terms of a government bid process in a way that favors a particular bidder. Here, to the tune of a $750 million contract for a high-tech facility as part of the Buffalo Billion plan to redevelop upstate New York.

Okay, so high-level overview of the Buffalo Billion plan to redevelop upstate New York. Okay, so high level overview of the two cases. I would say that from the arguments, it is clear that the court is sympathetic to the defendants and eager to further limit the reach of the federal fraud statutes. But let's maybe take a beat on each of the two cases. Right. So first up in Percoco, the justices seemed very concerned about the possibility of a theory that prohibiting people with ties to government office here, a former official who's serving on the reelection campaign with plans to reenter the government after the campaign is concluded, could extend to, quote unquote, personal friends of people who hold government office. And specifically that, quote unquote, personal

friends of people who hold government office could be targeted under fraud statutes for, say, receiving gifts, facilitating access to a government official. So let's hear from one of our favorite justices, Justice Alito, on this point. What do you say about somebody who is a super, super effective lobbyist. So let's say this person is a childhood friend of the person, the elected public official. They played together on the high school football team. This person was the elected official's best man or maid of honor at the wedding, spearheaded the person's political career, campaign manager for every campaign, helped this elected public official out of numerous political scrapes that everybody thought meant the end of the person's political career, now is a lobbyist, lobbies lots of different public officials, has lots of clients, has a 100 percent success rate with respect to this public official.

There's a concern about having this interpreting this statute to sweep in lobbying. But would that person be covered in your view? What, my dude? Yikes. It takes real cheek to ask this question at this moment. It does. And, you know, what you're maybe alluding to there, Melissa, is that, you know, as you said in our earlier episode about the New York Times story about, you know, the influence slash access campaign directed to the court, which we will return to later in the show. The tenor of this question coming from Justice Alito right now just hits different in light of that bombshell reporting.

Big DGAF energy. Big DGAF energy. Yeah. You know what else had big DGAF energy? Maybe we could tease it now. Again, we'll come back to it later in the episode. But a letter issued from the court's legal counsel last week in response to Democratic congressional inquiries about the New York Times story, and briefly the bombshell story we are referring to is the reporting by Jodi Kantor and Joe Becker about this influence and access campaign directed at the Supreme Court. So again, we'll come back to this. But the letter from the court's legal counsel said, you know, pretty definitively, there is nothing to suggest that Justice Alito's actions violated ethics standards. It also said the term gift is defined to exclude social hospitality based on personal relationships.

And it also noted that gifts do not count toward the dollar threshold if they take the form of food, lodging, or entertainment received as personal hospitality of an individual. So just as Alito's concern about casting aspersions on potentially untoward-seeming relationships that might involve, you know, the peddling of some influence falling clearly outside of any criminal or ethic statutes, it just felt like maybe Alito was speaking in two registers at the same time in this argument. But again, we'll come back to the Times reporting. So let's stay with Percoco for another minute. So okay, after Justice Alito's high school football teammate slash best man hypo, Gorsuch piled on. And here I thought that Nicole Reeves, who was representing the federal government, at one point actually got them to back off and let her answer a question. So maybe let's play Gorsuch pressing the same point as Alito and then Reeves answering and actually getting Gorsuch to let her speak. This town is full of such persons and presidents have had kitchen cabinets since the beginning of time. And those people are often taken quite seriously in the halls of government, whether they should or not.

It's an interesting public policy question. But I would have thought that many of those persons would be functional government officials, is that your phrase? Yes. Under your three-part test. Or at least they'd have to have a very long trial to figure out what the answer is. Such an individual doesn't have the approval of both superiors and inferiors that they're actually operating in a government role? Well, let's say he does, that he's in the White House or in the halls of Congress on a regular basis, and people know that he is taken

very seriously by the elected official and that they have to listen to that fellow and do as he says because they know he speaks for the President or the Senator or whatever. And yet, just because someone's very influential, you have to go through these factors. I know you keep saying they're influential and that's not enough, but why isn't it enough under your three-part test? Because a person like that isn't able to— What part of that test do they fail specifically? One, two, three?

Which portion and why? All three. All three, okay. If you'd allow me to unpack that a little bit. I just thought it was worth playing that clip because I thought it was effectively done, subtle but forceful in responding to Gorsuch badgering her with questions and then refusing to let her respond, which we see all the time from him. And it's got to be just maddening when you're up there trying to engage and being prevented from doing so. So I thought it was very deftly done.

In the register of here's what we're not going to do to Justice Gorsuch. But she didn't say that, but then she kind of did. At one point, the Jones Day lawyer who was representing Prococo seemed to suggest that perhaps there is a, I don't know, constitutional right to engage in lobbying when, as here, the lobbying was perhaps paying someone to award a government contract to you. So let's roll that clip. a good explanation for why the government's theory here and the Margiatta theory would not cover the really influential lobbyist, maybe somebody who used to be chief of staff in the office, has left, still knows everybody there, still can pick up the phone and get things done, as they said about Percoco. You know, why would that not be enough? And I think that's a major problem. It's a problem from a due process standpoint because of the indeterminacy. And it's a problem from a First Amendment standpoint because of the indeterminacy. And it's a problem from a First Amendment standpoint

because lobbying is constitutionally protected conduct. We're talking about petitioning the government for redress of grievances. And when you're chilling that type of conduct, that's a major problem. Wow. The First Amendment, just beyond religious freedom, beyond compelled speech, like the right to lobby.

Protects actual quid pro quo. Yeah, yeah. Yeah, I mean, unless you think, listeners, that we are making a mountain out of a molehill, I will recall this opinion by Fifth Circuit Judge Jim Ho dissenting from an en banc rehearing in Zimmerman versus City of Austin, which is a challenge to the Austin City campaign contribution limits

for city council members. So here's what Judge Ho had to say. To be sure, many Americans of good faith bemoan the amount of money spent on campaign contributions and political speech. But if you don't like big money in politics, then you should oppose big government in our lives, because the former is a necessary consequence of the latter. When government grows larger, when regulators pick more and more economic winners and losers, participation in the political process ceases to be merely a citizen's prerogative. It becomes a human necessity. This is the inevitable result of a government that would be unrecognizable to our founders.

So if there is too much money in politics, it's because there's too much government. The size and scope of government makes such spending essential. I have to say, I love how they defend this stuff. Like, hey, redistributivist stunt queens, if you don't want big money in politics, then don't have big government. You socialist bitches brought this on yourselves. I mean, am I right? That's the energy. That is the energy. And in some ways, it is the tear it all down sort of deep theory underlying many of these doctrinal commitments that conservative judges and justices really harbor. It is refreshing to see it made explicit from time to time. And I think that is what we have on display here. That is what is really driving them, like a complete dismantling objective. And you can dress it up in whatever First Amendment clothing you want, but that's really what it's about.

Lipstick on the First Amendment. Exactly. All right. So sticking with Prococo for another couple beats, Justice Thomas, not, you know, to be left out of this debate, voiced some real concerns about imposing ethical standards on government officials. They were kind of dressed up as federalism concerns. Always, always. Yeah, frequently anyway. Yeah, no. But, you know, clearly, if you listen, he seems to be concerned about imposing ethical standards just in general, as far as I can tell. I think my point is rather that it seems as though we are using a federal law to impose ethical standards on state activity. You know, there's another argument that kind of hits different given the various ethical issues swirling around the court and Justice Thomas and his spouse in particular. Let me just take a sip of my cocktail. I'm parched. So we've now said Hits Different a couple of times.

I feel like we need to mention that this is something that Leah noted. We were discussing this episode, that Hits Different. I did not know this. Did you know this, Melissa? It's a secret track on Midnight's that's available only on purchased albums, and I have just been streaming it, so I did not know that. But I now need to actually purchase that song. I mean, obviously, Leah purchased it immediately and knew this, but the rest of us did not. So we are not true fans. Only Leah is a true fan. I am a true fan.

We actually got tickets. We're gonna go. I'm not gonna disclose how much we paid for tickets. It was not a small amount, but we're gonna go in May. There was also some lighter moments in the Percoco argument, especially if you were a fan of the federal common law. So let's hear Justice Gorsuch letting loose with a little Beaumont. Where do they come from is my question. I think from a couple of places. One, they're inherent in the nature of being a public official. It's the sort of things we would look at to see whether someone is in fact acting as a public official.

The brooding omnipresence of the law. This is as funny as Gorsuch gets, honestly. Well, so it reminded me of this moment a couple of years ago at the ACS convention where Justice Sotomayor noted that it had taken her and her colleagues a minute to figure out Justice Gorsuch's sense of humor. And she said, like, you know, he wasn't funny the way we were used to. And I have to say, I think we're all still getting used to his sense of humor still. All these years hence, we still are. All these years, still getting used to it.

All right. Well, maybe we'll get there eventually. I don't know that we want to, honestly. There were a couple of actual funny moments in this week's sitting, so we'll get to those, but I actually didn't think this was one of them. Anyway, okay, so back to Justice Alito for a moment. Did you think that he was referencing a Clinton conspiracy theory with this question? relationship. Let me give you this example. Suppose there is a situation in which the person who formally holds official power doesn't exercise it, and everybody knows that. So suppose it's a popular governor who cannot run for re-election again, but the spouse of the governor runs. And everybody knows that the former governor is really the one pulling the strings. Everybody knows that. And if anybody asks the person who holds the office as a formal matter, that person will say, don't bother me with this. Just ask my spouse. Would that be, would that person be, could that person be convicted under the statute? This is very specific for a hypothetical.

Pretty specific, yeah. But who knows? I mean, he did change it from president to governor. So that definitely threw us off the trail. Clearly. Inspector Gadget. Well, for us to wonder. Which is interesting because I thought like Clinton

hate was the Kavanaugh. Kavanaugh. Not exclusively Kavanaugh's domain. I mean, I guess. So clearly some, I think from the clips that we played, some very skeptical questioning from the conservative justices. Actually, though, even the liberal justices honestly gave the federal government a pretty hard time at points during this argument. Everyone wants to make it safe for fraud again. They sort of do. I mean, look, some of the cases that the court has already decided that limit the ability of federal law to reach this sort of corrupt activity have been unanimous. You know, McDonald was unanimous.

Kelly was unanimous. Kelly, the Bridgegate case, was authored by Justice Kagan. So look, I understand that justices across the ideological spectrum are concerned about giving too much power and discretion to federal prosecutors. I think that concern is well-founded. But I also think this line of cases poses a real threat to values like integrity and fair dealing and ethics in government. And I think that justices should be concerned about those potential consequences as well. And yet, I expect that this will be just the latest installment of that long line of cases, making it harder and harder to go after this kind of fraud. Cool. All right, good times. So we'll be brief in the second of the two cases from

Tuesday. So the second case in this pair of corruption cases is Simonelli versus United States. And I think we have to start our discussion of it by noting who argued it for Simonelli, and that was Michael Dreeben. So Dreeben is formerly of the Solicitor General's office, and for years he was actually the deputy SG who handled the criminal law docket for that office, which meant that he argued on behalf of the federal government some of the really significant cases we walked through on the last episode. So Skilling v. United States, Cleveland v. United States, McDonald v McDonald versus United States. All of these were the cases in which the federal government was in front of the Supreme Court trying to defend convictions under various federal fraud statutes, and in each case lost as the court narrowed the reach of those statutes further and further.

And Dreeben is now in private practice at O'Melveny, and there's nothing technically wrong with him taking on this representation. But it honestly made me pretty uneasy to have this person who for years was like the walking embodiment of the federal government's views of criminal law now at a firm leveraging his credibility on matters of federal criminal law and like trying to build on these cases that he argued for the other side that might further narrow the reach of the federal fraud statute. So I just felt, it made me feel icky, honestly. All right. So onto the arguments though. So they were not quite as bad for the government as I had assumed going in, honestly. Like it's possible this case could be a super narrow vacate and remand since the government has now more or less abandoned what's known as the right to control theory. So that was the theory of the second circuit used in this case and in related fraud cases over the years. So basically this is a bid rigging case in which Simonelli secretly worked with state officials to be sure that his firm would be selected for these projects as part of the Buffalo Billions plan. And then the prosecutor's theory of fraud was that the state had a right to control its funds with full information about how those

funds would flow in the bidding process. And this scheme deprived the state of that. So if that sounds kind of convoluted, it maybe kind of is. And in any event, the federal government has now abandoned that theory and is trying to recast it as something like material deception or fraudulent inducement and is arguing the evidence was sufficient to support a conviction under a proper theory anyway. And so there should just be a straight affirmance. It seemed to me that a straight affirmance was pretty unlikely in this scenario. But as you said, a narrow vacate and remand would mean the court could leave for another day the whole question of whether the fraudulent inducement theory was sufficient here. And that has some elements and requirements that are similar to

the right to control theory. So maybe they want to take some time to parse through that if, in fact, the right to control theory has been abandoned to some degree. So again, this is a kind of weird, strange bedfellows coalition with the liberals being, I think, as skeptical as the conservatives are on this. And you have a straight line of cases that are all chipping away at the prospect of limiting fraud in government processes. So this seems like it's likely to add to that. It's just, will it add in a big way or in a more narrow way? The court also heard last week an extremely important case titled U.S. versus Texas. And if you're confused, because we had earlier talked about an extremely important

case called U.S. versus Texas, you would be forgiven, dear listener, because we have so many cases titled U.S. versus Texas. This one is a challenge to President Biden's enforcement guidelines regarding certain provisions of immigration law, particularly the provisions about which non-citizens are priorities for arrest and removal, as well as guidance about the factors to consider regarding whether a particular individual should be detained while immigration proceedings are ongoing. So in addition to this question of the lawfulness of that guidance memo, the case raises several other questions. So first, there's a really big standing question. Does Texas have standing to challenge this

guidance memo at all? There's also a really important remedy question. So if Texas does have standing, and if the guidance memo is invalid, what remedy might Texas have? the executive to implement the immigration statutes in a particular way? Can courts do this in general under the APA? And are they prohibited from doing so in particular in this case involving the Immigration and Nationality Act? And I'll just say, from the start, this argument got really spicy really fast with some of the justices, I'm thinking particularly of the Chief Justice and Coach Kavanaugh, being extremely dismissive of the federal government's position, both on the remedy and on the merits. They characterized the government's position as extreme and unprecedented. And in particular, Justice Kavanaugh seemed to think it would be a major problem if courts could not hear these challenges to how the executive branch is implementing federal

immigration law, which is really odd because it seems like just a couple of decisions ago, Justice Kavanaugh was all for the political branches speaking for the people on a fraught issue until he wasn't. So here we are. But maybe let's, I mean, like, is it too much to ask that he just stay consistent? But maybe let's just I mean, like, is it too much to ask that he just stay consistent? But maybe let's just go through the different steps of the argument and talk about how things went at each stage. So let's talk first about standing. So Kate, can you explain the standing issue here? Sure. Okay. So from the outset of the oral argument, both the Chief Justice and Justice Alito seemed to suggest the federal government's argument that the states lacked standing to challenge the guidance memo was foreclosed by the court's cases.

And, yeah, you heard that right. They raised, without any hint of irony, the idea that they had to basically put their critical faculties on hold and just respect precedents, giving states wide latitude to establish standing because this is a court that takes stare decisis oh so seriously. Very, very seriously. So here's the Chief Justice on that point. I would have thought you'd have a little more concern about an opinion of ours that's four months old. I mean, it's not even out of the cradle yet, and you're throwing it under the bus. And just for extra chuckles, let's add Justice Alito pretending that he cares about precedent. So this is a rule of special hostility to state standing.

How is that consistent with Massachusetts v. EPA, where the court said that there is a special solicitude for state standing? And just not to let these statements go unchallenged, we need to say that just because the court has said that states can establish standing based on theories not available to private plaintiffs, and the court has said that, that doesn't mean the states, you know, even putting aside the court's selective commitment to stare decisis, still that doesn't mean that states can walk into court whenever they think the federal government has adopted bad immigration policy. Here there are serious flaws with the district court's standing analysis. So that needs to be said. Well, I thought this was actually interesting. I mean, I think there's a lot you could say about Massachusetts versus EPA. This is a decision written by Kate's justice, Justice Stevens, which does take, I think, an unusual view of standing and bases it on the fact that the litigant is the state and that certain kinds of

protections or certain the availability of process should be there because it is a state as opposed to some other ordinary kind of litigant. But he was very clear in that opinion that this was not opening the door to states just being able to sue on any kind of theory of injury. And that, I think, is what was missing from this question is like, you know, is this your king, Justice Stevens, liberal Justice Stevens, Massachusetts versus EPA? Well, then, like, you know, everyone has standing. And I think it was a little more nuanced than that in Massachusetts versus EPA. It was. And Chief Justice Roberts was, you know, livid and an unusually sharp and I think angry dissent in Massachusetts versus EPA. And yet here, you know, he's all too happy to suggest that it kind of answers

the standing question in this case, although the situation is so, so different. There was also a little spice from Justice Kagan, who pointed out to her favorite, or maybe it's her least favorite, punching bag, Texas Solicitor General 2D Judd Stone, who seems to think that states can challenge any federal immigration policy under this particular theory of standing. And again, Justice Kagan seemed to be pointing out that that was really problematic, to say the least. So let's play that clip.

General, do you think that there's any immigration policy that you could not challenge under the way you view standing? I think that's hard to discuss in the abstract. There might well be, Your Honor, but it shouldn't come as... It's hard to think of, I guess, is what I'm saying. I mean, if all you need to do is to say we have a dollar's worth of costs and you don't even need to think about the benefits on the other side, I mean, every immigration policy, you let in more people,

you let in fewer people, is going to have some effect on a state's fiscal condition. Maybe they'll get less or more tax dollars. Maybe they'll have to spend less or more money. I mean, every single immigration policy. And then, you know, not to mention all the other policies in the world, that if a state comes in and says, I got a dollar's worth of costs that I can show you. And we're just going to be in this in a situation where every administration is confronted by suits by states that can bring a policy to a dead halt, to a dead stop, by just showing a dollar's worth of costs? This exchange prompted another death barb from Justice Kagan to Judd with two Ds. It's not responsive to my question.

And not to be outdone, she then pleaded with the chief justice to be allowed to continue murdering Judd 2D Stone right before her colleagues. Can I say something about that? Can I? One more? One more. I just love it. Elena, leave him alone.

No, he said go ahead. He said just one more. I'm saying, girl, he's dead. Let it be. Give him a proper burial. No sympathy, though. Neither did she. She had no sympathy either.

The point that Justice Kagan was pressing here is one that we've highlighted previously in our preview and one that friend of the pod, Commander Steve Floddick, has raised in his amicus brief that was submitted in this case. And that is that Texas is not only challenging every Biden administration immigration policy, but that the state is selecting which judges may hear those challenges by choosing to file their cases in divisions within districts where there's only one judge or in some cases, there are only two judges, but they're both Republican appointees or they've both been appointed by Donald Trump. And that's a kind of forum shopping that does not augur well for a sane system of judicial administration. And here's Justice Kagan on that point. I mean, just to think about just the backdrop of this case and what's going on here.

Let me just add to the notion, not your fault. This is not, you know, in Texas, there are divisions within districts. You can pick your trial court judge. You know, you play by the rules. That's fine. But you pick your trial court judge. One judge stops a federal immigration policy in its tracks because you have a kind of sort of speculative argument that your budget is going to be affected. You know, she was nicer here than she had to be, right? It's not your fault. I don't know. I think it kind of is.

It kind of is your fault. Maybe she felt bad about the murder that preceded it. I'm not sure. You don't have to feel bad. He brought it on himself. Okay, so let's shift to remedy, because this part of the argument was really, really interesting. The question again here is whether district courts have the power to invalidate presidential action on a nationwide basis or issue a nationwide injunction regarding implementation of the INA. And the federal government was making kind of two distinct arguments here. One, a specific argument under the immigration statutes, and then actually a broader argument, which as we will describe, some of the justices really got their dander up over,

that maybe in general, courts have been engaging in remedial overreach in their understanding of what the Administrative Procedure Act, and in particular, Section 706.2 provides. So that provision contains language allowing that courts can set aside unlawful agency action, but the federal government is arguing that maybe that language has long been misunderstood and that it actually doesn't permit the remedy of vacature. As we previously suggested, there is language in the court's decision from last term, Garland v. Aleman-Gonzalez, that strongly reads as a statement that the court already decided that the INA forbids district courts from entering injunctions requiring the executive to implement the INA in a particular way. And here's what Justice Alito wrote for

the court in Aleman-Gonzalez. Section 1252-F1 generally prohibits lower courts from entering injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions, end quote. Now, since we all know how much this court and Justice Alito in particular cares about precedent, as the justices were just suggesting, I'm sure that they will be bestirred to resolve this issue post haste. What do you think, Kate? The language seems pretty clear and yet I'm not sure. Yeah. And one of the reasons that I'm not sure that the justices will agree that this is as obviously settled as that language seems to suggest is just the way that at least two of the justices seemed completely appalled by the suggestion that courts couldn't invalidate agency actions on a nationwide basis. And here, they're actually responding not to the narrow Section 1252 argument, but more broadly to this

APA argument. So the Chief Justice and Justice Kavanaugh repeatedly invoked their time in the D.C. Circuit during which, as they suggested, like literally, this is basically what they said, guys in my court of appeals and joint agency actions all the argument, I would not have imagined it was possible to talk in quite such a fratty register about vacature under the APA, but Coach Kavanaugh managed. I mean, you kind of have to hear it to believe it. So first, let's play the Chief Justice with the warm-up. Counsel, maybe we can move on to individual question now, and I'm sure that some of it will deal with remedy, which is the one area we haven't addressed yet. And in that area, your position on vacatur, that sounded to me to be fairly radical and inconsistent with, for example, you know, with those of us who are on the D.C. Circuit, we do, you know, five times before breakfast. That's

what you do in an APA case. And all of a sudden you're telling us that, no, you can't vacate it. You do something different. Are you overturning that whole established practice under the APA? Okay. So that's the chief justice calling the federal government's argument radical, inconsistent with the experience of those of us who are on the D.C. circuit. And so then Kavanaugh jumps into the fray. Well, can I move to Remedy then? Because I still have some problems with that,

as you might imagine. Set aside, you said the judges on the D.C. Circuit haven't paid attention to text, context, and history. I guess I would respectfully push back pretty strongly on that. I sat with judges like Silberman and Garland and Tatel and Edwards and Williams. They paid a lot of attention to that. And the government never has made this argument. And in all the years of the APA, at least not that I remember sitting there for 12 years, I haven't seen it made. It's a pretty radical rewrite, as the Chief Justice says, of what's been standard administrative law practice. And you devote three pages in your brief to this complete change that all these judges have been doing for all

these years. And the government comes up and acknowledges that in case after case after case with labor, energy, environmental environmental and I think it's a big step and you say they're not paying attention the text yeah we did set aside means set aside then that's always been understood to mean the rules no longer in place no one's really had a this no case has ever said what you're saying anywhere no one's you know it's a recent law review proposal. Good for that. But that's not been the law.

And so I find it pretty astonishing that you come up here and make it. And I realize it's not the main part of your submission, but I'm just going to push back pretty strongly on the three pages for just toss out decades of this court's law, of circuit law. And you've got public citizen and Texas coming after you on this. They don't usually unite in an administrative law case, in my experience. And they both say your position is completely unprecedented on that.

So that's not really a question but that is a that is a comment on which i what i think is a pretty extreme argument and i know it's not your whole argument this piece of the argument so i don't want to overstate what i'm saying here just this piece of your argument i think is pretty extreme so i mean larry merrick david harry we I mean, Larry, Merrick, David, Harry, we were all just doing it. How could it be wrong? All just sitting around the D.C. Circuit house, like just doing it. Just like the affront that he thought the federal government, I mean, it was just wild. And Gorsuch, we're not going to play any clips from Gorsuch because we already have so many clips, but Gorsuch actually, to his credit, was like, I wasn't on the D.C. Circuit, which, you know, he wasn't.

But he was also, I think, correctly saying without saying explicitly, like, I don't know, maybe we should look at the language of the APA. And that's all the federal government was asking the court to do. Like, yes, for a long time, everyone has assumed that courts have this power, but maybe we should take a fresh look. And, you know, who knows what we'll find. But Kavanaugh was just so offended by that suggestion. Well, the whole exchange actually prompted an interesting follow up from Justice Jackson and then this very interesting quip from Justice Kagan. So here's Justice Jackson and Justice Kavanaugh raised about Bakener and the argument that you're making in this case. And seems to be a kind of D.C. Circuit. It is. It is.

So I kind of love this. Like Justice Jackson's like, you know, at one point the frat got coeducated and I was there too. And then Justice Kagan steps in and is like, you guys are literally a cartel. And it should be noted here that in 1999, President Clinton nominated then Elena Kagan, former government employee, former law professor, to the United States Court of Appeals for the District of Columbia Circuit. But the Senate Judiciary Committee's Republican chairman, Orrin Hatch, never scheduled a hearing on her, which effectively ended her nomination. And to my mind, with this exchange, she doesn't seem to be especially bothered about having missed out on this particular stint on the D.C. frat. She's like, I dodged a bullet and I still ended up here. Like, I didn't get paddled, didn't get hazed, and here I am anyway. So all good. So that was a fascinating set of exchanges. But let's also make sure we have some time to talk

about the merits. So here is another, I think, a relatively lengthy but very much worth playing exchange between, again, Chief Justice Roberts and Solicitor General Prelogar. So let's play it. And then I kind of want to try to articulate why I found it just so maddening. Let's say that I disagree with you on standing and on the remedies and I have to reach the merits. And when we get to the merits, I think shall means shall. Then we're in a position where, as you see it, Congress has passed a law that it is impossible for the executive to comply with. Now, it's our job to say what the law is, not whether or not it can be possibly implemented or whether there are difficulties there. And I don't think we should change that responsibility just because Congress and the executive can't agree on something that's possible to address this problem.

I don't think we should let them off the hook. So shouldn't we just say what we think the law is, even if we think shall means shall, and then leave it for them to sort that out? Well, Mr. Chief Justice, let me take a stab at trying to persuade you that these considerations of resource constraints do properly inform the task for this court, which is to interpret the meaning of shall and the statute itself. And the first thing— Well, it seems to me that you're arguing with one of the predicates to my question that we think—I think, anyway—shall means shall. What do we do in that

situation? If this court were to actually adopt that interpretation of the statute, then I think that it would be incredibly destabilizing on the ground. I didn't ask you what it would be. I want you to know what we should do. Should we still fulfill our responsibility to say what the law is, and then it's up to Congress and the executive to figure out a way to comply with that? I think if the court did that, and the reason I'm turning to the practical implications here is because in the meantime, while Congress and the executive tried to figure it out, it would absolutely scramble immigration enforcement efforts on the ground. It would mean that DHS, I think, if it were under this kind of

judicially enforceable obligation to treat each of those shalls as a mandatory shall. So you're still arguing, I'm sorry, you're still arguing that that would be wrong to say shall means shall. I think it would, I think it would be wrong to say the shall means shall. And I would, I would welcome the chance to explain as a matter of statutory interpretation why that's so. But at the very least, I don't think the court should announce it as a judicially cognizable injury here that could justify interference by the courts in light of the practical ramifications. I'm just an umpire calling balls and strikes. Yeah. So let me try to figure out. I mean, I really, my head felt like it was going to explode listening to this line of questioning. And there was just something that was like this really kind of performative obtuseness on display by Chief Justice Roberts. Like this, I'm a simple judge. I'm a simple umpire. I say what the law is. And then you all in the political branches work

out how to comply with it. It would be improper for me to worry about those things. But I mean, saying what the law is doesn't and shouldn't happen with blinders on about consequences, including the possibility of actually complying with the law as courts understand it. And I mean, I think part of why I felt like my head was going to explode was because Roberts was once actually pretty good on this kind of stuff. Like remember his opinion in King versus Burwell, when he refused to embrace an interpretation of the Affordable Care Act that would have completely and fatally undermined the ability of the act to function as intended. Right? He was like, no, we can't read that word in that way or it would completely cause the Affordable Care Act to death spiral.

So that can't be what Congress wanted. Like, that's all over that opinion. And interpreting statutes is not some scientific undertaking that happens in a vacuum and it shouldn't be. And then, you know, that's in addition to all of these background principles about the importance of enforcement discretion in the context citizenship case and the DACA rescission case. And he is just in those cases so far from the Roberts that was on display in this argument. And I just – the last thing I'll say about this line was that it called to my mind – you remember we talked last term about Law Professor David Knoll had this great tweet that I think he's since deleted after the film Don't Look Up, right, about the asperity. Why did he delete that? That should be in his tenure file. I know. It should be in his tenure file. It should be in his tenure file. It should be in the Louvre. That tweet was so good. But he,

but anyway, it was something like the film Don't Look Up would have been, had a higher degree of verisimilitude or something if the Supreme Court, based on the major questions doctrine, had enjoined NASA's efforts to actually take out that asteroid or something. I mean, that was not, it was much better than that, but that was the gist.

It's very funny. Yeah, and that was kind of the energy that Roberts, I thought, had in this line of questioning. Like, it's not our concern if our rulings will, like, destroy the planet or will make it absolutely impossible for the federal government to function. All we do is look at some words and say what they mean and then, you know, go home and pour a cocktail. Like, it was just crazy. That said, both the chief and Coach Kavanaugh did press 2D Judd Stone on this same question of how exactly the federal government could possibly function without enforcement discretion and guidance to assist fuel agents, for example, in exercising that discretion

in the face of the 11 million removable noncitizens and the fact that there are like 6,000 ICE agents in the face of the 11 million removable non-citizens and the fact that there are like 6,000 ICE agents in the country. So yeah, he went back and forth on this. Yeah, totally. Anyway. But yes, more of the energy was reserved for so what if I blow this all up? I'm doing law. I'm doing law. Okay. One possibility in terms of outcome here is that we could get some combination of the conservative justices who agree that review would be barred under 1252 F1. And then maybe the Democrat appointees who agree with the federal government on the merits that the memo is perfectly permissible. And maybe they all come together. And there's a majority against Texas that, you know, sort of, again, a strange bedfellows kind of assembly. Although, I mean, I think it is very clear that Justice Alito is going to vote with Texas no matter what. And I think it's also very clear that the D.C. Circuit Mafia on the court is very D.C. Circuit Mafia slash fraternity is very unhappy with the APA argument. But it just seems less clear about

where they all are on 1252. So that seems possible that the federal government ekes out a win stitching together these like different coalitions. But we also should take a step back and acknowledge that it is truly insane that this case won't be unanimous on the merits. And I mean, a standing to maybe, but certainly on the merits, this guidance doesn't require any officer to do anything in a particular case. It is literally just about setting priorities for apprehension and removal. And if you can't have priorities – Which should be within the administration's purview.

Of course it should be. And that's true as to immigration law and law in general and is actually required for the sensible execution and implementation of all law. And every administration has done it. And it would be malpractice not to, honestly. So, you know, it's kind of madness to me that even if the Biden administration wins this case, there will still be justices who will say that they're fine depriving this president, though I am sure not all presidents, of this kind of clear authority that the president has to possess. So that's probably enough on that case. Maybe we'll just take a beat on the last case the

court heard argued this week, Wilkins v. United States, which is a case about whether the statute of limitations in the Quiet Title Act is a jurisdictional limit or a claim processing rule. And if it's the latter, it can be waived. There's a chance the plaintiffs lose either way, so it's not totally clear what's at stake in this case. But I did think the oral argument gestured at this kind of interesting, like, intertemporal question about what the court should do about earlier cases that were decided based on interpretive principles the court no longer uses. And like, this is a very particular

instance of it, because the way the court used to use the term jurisdictional was very loose, and it has since acknowledged that it was very loose, and it's trying to be more precise now. And so like, this is pretty specific. But there is, I think, this larger question about how different the court's approach to statutory interpretation is today from its approach in earlier eras and sort of what that means about how it should treat earlier statutory precedents. And I thought this came up in some pretty interesting ways actually in the Sackett Clean Water Act argument earlier this term. And so, you know, I think there's just like a lot of interesting questions about interpretation that Wilkins sort of dipped a toe in.

I thought the case really revealed some interesting interpersonal dynamics that I wanted to highlight. You know me. What's going on? This was surprising. I know what you're going to talk about. I know. And it's very surprising. Also, there is one thing I wanted to highlight from oral argument, and it was an uncharacteristically friendly, I might even say warm exchange between Justices Alito and Kagan.

Yes, I think if it had used subject matter jurisdiction in. OK, so. I think you're giving too much away there, Mr. McCoy. Well, maybe maybe Mr. McCoy could answer my next question, which is about Justice Kagan. And I like to ask each other i'll reciprocate but anyway we haven't even given me a chance okay go ahead now i've forgotten what my next question is well let me let me rephrase no no i i know it's come back to me uh so are you that was is there a thawing of relations

here? They were like, there was genuine like mirth and warmth in their voices. It was so weird. I like that as a general matter. That pair, I mean, if Kagan is working him over in some fashion, I am all for it. But it was puzzling to me just like how

genuinely friendly and jovial they sounded. I'm still holding a grudge on her behalf for his Wall Street Journal comments where he was basically like, you can't criticize the court about it. It's crossing a line. And I'm just like, I mean, so clearly Justice Kagan is not a Virgo or she would be literally nursing this grudge until the end of time. And since since she is not, I will nurse it for her. But yeah, this seemed like weirdly warm. until the end of time. And since she is not, I will nurse it for her. But yeah, this seemed like weirdly warm. Maybe he's invited her to Jackson Hole.

Like, Elena, my friends have given me their cabin for the weekend. Why don't you come hang out with me and Martha Ann? Well, she used to go shooting with Justice Scalia. I don't know if she has any kind of similar golf with Sam. Like, I don't know what that,

I don't know what, I don't know what Sam's like pastimes are. in spa robes and they're like doing sheet masks and he's like, okay, put this yogurt on your face. Like,

put it on your face. Pedicures, all of it. Spa with Sam. Oh God. I love that for them a little bit. I guess.

I'm getting better than us. I mean, I mean, I, all right, should we pivot to this coming week and then on to news

and culture? Definitely. Let's do the week and then we'll do news and culture. I can't wait for news and culture. Okay. You've been very patient. Okay. I've been very, like, let me just get through this. This week is going to be one of the most explosive of this term and I'm not being hyperbolic. So in our last episode, we extensively previewed this week's two biggest cases, 303 Creative versus Alanis and Moore versus Harper. And we'll recap these arguments on our next episode. But Kate, tell us what we need to know. Well, I just, you know, so Moore versus Harper, this big independent state legislature theory thingy fanfic case is being argued on Wednesday. And, you know, we mentioned in our

preview that there is extensive amicus briefing opposed to the ISLT, including tons of conservative luminaries and like a huge numerical asymmetry, just tons of really big briefs opposed to the ISLT, a much smaller number in support of it. And we also... Very upside down. Yeah. Very upside down. And we also now know who is arguing the case, and that just seemed worth flagging. And so arguing in opposition to the ISLT is not one, not two, but three solicitors general. Here come the generals! Exactly. So former SG Don Verrilli will represent the state respondents. That's like the North Carolina Department of Justice.

Former acting solicitor general Neil Katyal will represent the non-state respondents. So that's North Carolina voters and several organizations. And current SG, Elizabeth Prelogger, will represent the federal government. So that is like a lot of heavy lawyers. I mean, literally big guns. Yeah. And then on the other side is David Thompson, a lawyer at the firm of Cooper Kirk? Will this advocacy asymmetry matter? Who knows? But I honestly can't recall like a three SG on one side argument lineup ever. They probably have Seth Waxman on like phone a friend.

Like on the side. I wonder if he feels left out. He's like, why am I not arguing in this case? Like you did students for fair admissions. You're fine. You're fine. You're fine. All right fine. You're fine. All right.

Okay. So I'm looking forward to that argument. I mean, I'm terrified, but I'm glad that these are the advocates. Right. So we will recap those arguments in our next episode. And since we've previewed them, if you want to know what's going on with them, just hit the flip and go back and listen to one episode before that. And actually, we should also, but oh, sorry.

So I'm making you wait for 10 more seconds, Melissa, because let's also mention that over the summer we did a special full hour on this case and the ISLT with Jamel Bowie and Carolyn Shapiro. So if you're super interested

in going deep, pull up that summer episode and listen to it. Okay. Is it time? Now we can move on to news and court culture. Let's go to news. Okay. So let's start with news. And the first thing we just wanted to mention was that the court declined to issue a stay of execution in the case of Kevin Johnson, who challenged his execution based on a finding by a special prosecutor that his original prosecutor had been biased against black defendants. So again, the court denied his request for a stay. Justice Jackson, joined by Justice Sotomayor, noted her dissent at the time, and then the next day actually issued a written opinion that followed the vote. And this was the second written opinion that she's issued. She also

dissented from the denial of cert in a death penalty case in early November. I know that she, I think, is going to be active in not just noting, but explaining her views in these cases where the court all too often, as we have noted, gives no reasons or no explanation at all. And I just, it made me like, I'm really looking forward to when she starts actually authoring Merritt's opinions, but we probably have a few months to wait before that happens. All right. SCOTUS also granted certiorari before judgment and set the Biden student loan forgiveness plan for oral argument in February. So this will keep the program on hold until the court actually decides the case. The Solicitor General's office had asked the court to vacate the injunction entered by the Eighth Circuit. And the court

treated that application as a petition for certiorari and set the case to be heard in February, though we don't know yet the exact date for oral argument. The Biden administration was going to start actually processing loan forgiveness by the end of the year, but this means that it now cannot do that. And because the Supreme Court has apparently not unleashed enough chaos in the last six months, it's decided that, you know, it has an appetite for more. You only live once. So just stop all the student loan forgiveness. I guarantee we will be returning to this case in good time. So this is a major, major cert grant. And again, sort of of the vein about, you know, policy priorities on the extent of

executive power, this is going to be a really big case. Yeah. Another case with enormous standing questions. And I do think it'll matter a lot how the Biden administration kind of messages around and talks about this case in the Supreme Court, because it's going to have very tangible consequences for millions and millions of people, what the court does here. For a lot of very young voters who are likely to be the beneficiaries of this program if it were actually allowed to go into effect. That's right. All right. Is it time? It's time.

Is it time? Okay. All right. The latest on Alico or Alicto? I think I like Alicto. Alicto. Alicto. Some updates regarding skincare maven Sam Alito. So a very brief reminder of what's at issue here. Spearheaded by evangelical minister and former anti-abortion activist Rob Schenck, which included a dinner attended by two of Schenck's emissaries and the Alitos, at which the outcome of the Hobby Lobby case may or may not have been disclosed. After all that came to light, some congressional leadership had questions. So our friend and former guest, Senator Whitehouse, together with Representative Hank Johnson, sent the court a letter. We referenced this letter earlier in the episode, or at least the response to it. And the letter posed a number of questions, including whether the court would be investigating these allegations and whether the

court might revisit some of its practices with respect to things like gifts and travel and other ethics matters. Well, our friends on the Hill at the Senate Judiciary Committee and the House Judiciary Committee got a response. But I have to say it was a bit of a deflating response. It came from the court's legal counsel, Ethan Torrey. And let me just say, I was a little surprised to think about the court having a lawyer. But here we are making attorneys get attorneys. Anyway, Ethan Torrey, who is the court's legal counsel, issued a response. And it mostly involves sort of anodyne denials of impropriety and reminders that under the relevant ethical standards, which I should say are negligible here, these sorts of things aren't really an issue because the justices aren't necessarily required to report these kinds of goodies, if you will, as gifts.

They're not considered gifts. And this was a big part of the letter, sort of explaining that meals, stays at vacation homes, hospitality, those are not gifts to be considered under the very limited ethical rules to which the court subscribes. So there's that. But then I got a little tease. So one of our listeners slid into my DMs, if you will, to let us know that this person knows Ethan Torrey. And he wanted us to know because I think he suspected we would be very skeptical of this response, but he wanted us to know that Torrey is actually a really good guy and a very good lawyer. In fact, he was described as a lawyer's lawyer. And I believe it. I do not

dispute that because this is a very lawyerly letter. This is exactly the kind of response you expect from someone who is responding on behalf of a client who has been accused of wrongdoing. Because it basically says there is nothing to see here because there are no rules or laws that cover this alleged misconduct. Therefore, it is not misconduct. There is no rule that prohibits a justice from getting a free vacation at a rich person's Jackson Hole vacation home. So thank you so much. I'll see you on the flip side. I mean, so I am going to be less generous about this letter. And also, did Tori himself slide

into your DMs? I wonder. Was this like an assumed identity or was it somebody you knew? No, no, no. It's actually somebody you know. No, it was someone I knew. Okay. Anyway, a couple things. One, sure, maybe this is the letter you send on behalf of a client who's been accused of wrongdoing, but I don't think Sam Alito is Ethan Torrey's client, honestly. Like, the legal counsel to the court is this, you know, usually pretty internal-facing operation that, writes top memos, cover memos to the conference, all the justices, sometimes advises on, you know,

definitely advises on ethics matters that pertain to the justices and to clerks and other court personnel. Maybe Ethan Torrey is like, he's lawyering for all the justices. I can imagine this is just the only kind of gift situation we know about. There might be other gift situations about which we don't know. No. And again, but just this sort of the public facing nature of this letter, it's obviously to the hill but quickly made public. It's just not a posture you typically see the legal counsel in.

And honestly, more than that, I did find it kind of weird in tone. And I will note that Sherilyn Ifill on Twitter at one point sort of questioned whether it was real. And I actually thought here's what I thought was so weird about the letter. It was very careful in terms of the way it described the ethics obligations and the consistency of these reported events with those obligations. But then there was this like really gratuitous reference to Politico. So New York Times broke this story and the letter says, well, Politico was unable to locate anyone who heard about the decision at Hobby Lobby directly from Alito or his wife. And okay, but that's also what we know from the Times, right?

The Times also said Mrs. Wright denies that this happened. So no, the Times also didn't report anybody who directly heard this. But the point of the story was that there is lots of circumstantial evidence confirming it. And Politico actually also reported that. And it's also the case that the Hobby Lobby leak isn't even the most important part of the story as far as we're concerned. It's not the story at all. It's not the story. As you said really clearly in our last episode. Yeah. And so it's like it's just a little bit non-responsive to the larger institutional questions that the story raises. So those were some of my reactions to the letter. I don't dispute that Ethan Torrey is a nice guy and probably a really terrific lawyer.

I'm sure all of that is true. Again, it made me wonder, like, you know, who is the actual client here? Is it the court more generally? Is it Justice Alito specifically? Is it the chief justice? I mean, I imagine this letter had to go across the chief justice's desk before it went anywhere. So, you know, there's that. Although the chief justice, as you have reminded me, has his own lawyer for purposes of the court's administrative function.

So, you know, there's that. It was sort of an interesting tone. To some degree, it struck me a little bit like sort of the kinds of letters that ethics lawyers in the government typically write. You know, you just you get this question like, can I buy this stock as a member of this agency? And someone's like, OK, I've looked at XYZ rule, and no, you cannot buy that stock. And so there's sort of a kind of straightforward aspect to it. But this isn't a straightforward issue, in part, because there isn't, you know, there's not a lot of law or regulation around this question. And I think specifically,

the fact that Sheldon Whitehouse and Hank Johnson were asking about this is – the underlying question that I think was actually stated was, you know, we're investigating this because we want to know if there should be rules. And he's basically like, yeah, there's nothing to see here because there's nothing to see. Right. And maybe that means there needs to be something to see. Certainly the authors of the letter, Senator Whitehouse and Representative Johnson, were not satisfied with that letter. And they basically fired back another letter saying the Supreme Court has reiterated Alito's denials, but didn't substantively answer any of our questions and called the letter an embodiment

of the problems at the court around ethics issues. So I think we know that the Hill is not done with this issue. Yeah. Yeah. They're still coming for you. There'll be time after the holidays. Actually, even before that. Well, I mean, but after the holidays, too, I think a lot of the energy will come from the Senate Judiciary Committee and White House, who literally will, I think, be like a dog with a bone about this. Maybe not so much from the House if there's going to be a change in leadership. But I mean, I think the Senate by itself is enough to kind of really put some heat on this. Anyway.

Definitely. But before the changeover, right, the House Judiciary Committee is, I think, going to hold hearings on Operation Higher Court this week. So I don't know. I don't think we know yet who is testifying, but I will be very interested in those hearings. Cannot wait. Oh, can I say, I took your recommendation and I listened to the New York Times, the Daily podcast this morning that had an interview with, I think it was Jodi Kantor and Reverend

Schenck. And oh my God, like I almost walked into traffic at one point because it was like so jaw dropping. It's pretty jaw dropping. You pick your jaw up off the floor after the initial reporting and then it was like back on the floor because I think there was a lot more, at least more kind of color and detail in this interview. The training, like they literally had like here's how – but first of all, Reverend Shank described this influence campaign like matchmaking. This was like hinge for justices. Like so we were matching donor rich people couples with justice couples and we tailored it. It's all a little gross. He described himself as basically a matchmaker.

He said we would feel out what justice pairs would be good pairs by feeling out personalities, interests, station in life to figure out where there was a real possibility of a meaningful relationship between one of our couples, as he described them, and a justice couple. I mean, it was incredibly calculated. And then these couples, again, which he referred to repeatedly as our couples, were trained in the rules and the rhythms and the protocols of life inside the Supreme Court. This is like Temptation Island. This is like Temptation Island. This is like Temptation Island or Fuckboy Island for justices.

Oh, my God. I was not going to go there, but there was something really weird about these set up double dates. It was just really strange. Yeah. And he put together a manual that says, here's how you approach a justice. Here's how you introduce people to the justices. You don't call them Justice Alito. You're like, hello, Mr. a justice. Here's how you introduce people to the justices. Here's the language you use.

You're like, hello, Mr. Justice. And then he knows you get it. You get the protocol. It was wild. And then this couple that's at the center of the Hobby Lobby story, the Wrights, Shank describes as having been particularly good at this, like getting it. And then lo and behold, they became real friends with the Alitos. And, you know, Shank says, and this was also in the Times piece, although honestly I hadn't focused on it at the time.

Not just Alito. Remember she was describing Justice Scalia as Nino and hanging out with Maureen. Oh, totally. Yeah. But it's the Alitos who stayed with the Wrights at their home in Jackson Hole, Wyoming. As one does in a casual friendship, Kate. I mean, you know, remember Alito said in his denials to the Times and then also through the weird letter from Tori

that this was a casual and purely social relationship. And okay, it was social. No one's saying it was anything else other than that. But casual? No, no, no. Casual is like you go to someone's house and they made pigs in a blanket and gave you a cocktail. That's a casual relationship.

When you are staying the night, when you are putting your toothbrush in their bathroom and using their towels, that's not just casual. It's not casual. I don't even think we've been to each other's houses and spent the night. And we see each other- I've been to each other's houses, but not spent the night. Not spent the night. Not put on pajamas and slippers. We have not done that. Come down in the morning in your bathrobe to get some coffee. To be clear, I would. But that's intimacy.

I would. I wouldn't do that with people I have a casual relationship with. No. Oh, my gosh. It's not a casual friendship. Like, this is Hinge. Yeah. So anyway, if people are interested in this story in the way that we are and you haven't

listened to that episode of The Daily, please do that. That Daily piece and the follow-on piece from The Times I think made clear to me that The Times seems to be staying on this story. And I am glad. This is really important. I will say other people need to get on the story. So I just want to give a shout out to Alex Wagner and MSNBC who had me on last week to talk about this. I think more people should be talking about this. This, this is weird as fuck. This is just really, they bought a building. They raised 30 million, more than $30 million.

And then Shank talks about it. Like there was this lovely Victorian row house across the street from the court. And so I bought it. And then I would look every day into the court and send prayer missiles with my mind to the court. Like, what? Like, what is happening? He does that. And to be fair, like, look, you can send whatever prayer missiles you want. But the court. Like, what? Like, what is happening?

He does say that. And to be fair, like, look, you can send whatever prayer missiles you want. But the thing about, like, he was like, I was there and it was important to be close because you can, like, pick up on stuff and learn about stuff and just be in the right place at the right time. And just see them at Prêt-à-Manger and talk to them. And, like, it's just – I mean, I'm just going to say, I don't know that there is an analogous liberal slash progressive campaign to do this.

I mean, like, I don't know that George Soros is buying. No. Like, we're so poor. We're writing amicus briefs like real plebs. What? It would genuinely also not occur. It would not occur to us to buy a building. I mean, oh, my God.

Operation Higher Court, Operation Lower Court. Anyway, let's shift to some other court culture. We'll tick through some kind of like other news in the lower courts and then call it a day. Yeah, let's do that. Why don't you talk about what's been happening down in Georgia? Well, there's just a few things that we haven't had a chance to mention that we wanted to just briefly touch on. So one, right before the Thanksgiving holiday, a state court judge in Fulton County struck down Georgia's six-week abortion ban. And it was in an opinion that contained a footnote

that I kind of feel like we need to read at least a couple of sentences from. So this is Judge Robert McBurney. And he wrote, quote, the state, so this is the state of Georgia, the state argues that Dobbs reflects no change in constitutional law because there was never a federal constitutional right to abortion,

except there was for 50 years. And we know it because the very same Supreme Court And the end of the footnote, McBurney goes on to say, not somehow more correct than the majority that birthed Roe or Casey, despite its frothy language disparaging the views espoused by previous justices. The magic of Dobbs is not a special insight into historical facts or monopoly on constitutional hermeneutics. It is simply numbers. Anyway, there's a bunch more, but this was a great footnote. And I just feel like we need to say, Judge McBurney, we will get you that YOLO court shirt in the mail. We will not. Because we think you deserve one. No, we will not, because that would be a gift. Instead, Judge McBurney, you can come stay at my house overnight because that is fine. Judge McBurney, you have our blessing if you want to order and pay with your own salary one of our YOLO court shirts, but we feel like you need to be wearing one. Okay, we should say the Georgia Supreme Court not surprisingly quickly reversed that opinion and put the Georgia ban

back into effect with no explanation because they clearly take their cues from one first read. But I didn't think the fact that the court so quickly reversed that opinion should mean that the footnote immediately evaporates into obscurity because it's worth our giving some attention to. Last week, the Supreme Court rejected Donald Trump's request for emergency relief that would have spared him from having to provide his much discussed tax returns to the House Ways and Means Committee. So there were no recorded dissents, interestingly, not even for Clarence Thomas, who has been especially solicitous of former President Trump's efforts to get the court to intercede to shield him from various investigations. So maybe Justice Thomas is happy to kind of ride under the radar for a little bit, let Sam take the heat and the bad press for a bit. But in any event, former President Donald Trump, not surprisingly, took to his social media site, I say that with air quotes, truth social, to make his displeasure known. So I'm going to say it in my Trumpiest voice.

Why would anybody be surprised that the Supreme Court has ruled against me? They always do. The Supreme Court has lost its honor, prestige, and standing. FYI, I nominated a third of them. That's me paraphrasing. It has become nothing more than a political body. Again, I nominated a third of this court, with our country paying the price. Shame on them, this body of individuals of which I've nominated and appointed a third. I did a lot of paraphrasing on the Truth Social. Sorry. If I were on Truth Social, I would have quote tweeted it and added all of these things. But anyway.

Would they let you? I don't even know. They would not let me. I'm sure. Would they let you on Truth Social? I don't even know. No, no. I would have to change my name to Kanye. I would have to change my name to Kanye.

I would have to change my name to Kanye. But I feel like you'd fail it. I would definitely fail. Also, another important recent development in the world of law, although not the Supreme Court in particular, which is there's a new special counsel in town. So since former President Trump has declared that he is running for president again, Attorney General Merrick Garland has named a special counsel, Jack Smith, whose name is just so good. And I keep for some reason thinking of as Jack Ryan from that John Krasinski show. But it's not. He's Jack Smith.

And he's taking over the investigation, both of the Mar-a-Lago document case and the kind of Trump and senior White House leadership part of the January 6th investigation. So we'll see what develops there. Watch this space. In other news, the Senate passed the Respect for Marriage Bill. So this is a bill that would protect existing marriages under federal law and as a matter of full faith and credit in the event the court overturns Obergefell v. Hodges and or Loving v. Virginia. So the bill actually goes further than just protecting same-sex marriages to also protect interracial marriages as well. The Senate version is a bit different from the previously passed House bill. And the

Senate bill includes pretty broad religious liberty protection. So that would have to be reconciled or the House would need to pass some version that looks more like the Senate bill. But I do think that there is every expectation that some version of this bill will be passed and that it will be signed into law by President Biden. So this is a promising development about codifying the protections for same sex and interracial marriages in the wake of Dobbs. So well done, I guess. Yeah, no, I think it's really important. I do think that Congress obviously didn't seek to legislatively backstop the right to abortion during, say, the first year of the Obama administration when the Democrats controlled, obviously, the White House and then both, which I have to say is curious because there are so many men in the commentariat who told us that it was hysterical to worry about Obergefell, that Thomas was just spitballing for himself, et cetera. I mean, I don't want to hear it. I mean, we said it, I said it, whatever.

I think one of the real differences here is sort of the differences in the political economy of gay marriage versus the political economy of abortion. And, you know, we have lots of people on both sides of the aisle who know and love people who are in same-sex marriages. So I think that contributes to it. I think the sort of public effect of same-sex marriage really counts here in a way that the sort of secretive nature of reproductive care really hobbled abortion for many years as a legislative and public policy question. So again, there are lots of lessons to be learned here. One of them is early and decisive action when you have the opportunity, but I think there are some other lessons that could be learned as well. One thing to flag that, I mean, I'm afraid we're going to have to keep an eye on,

but I just want to mention now, which is that last week, some conservative groups sued the FDA in, you guessed it, Texas. Stairs and Steve Vladek. I know. So, you know, obviously a very strategic choice of where to bring the suit. And the goal of the suit is to challenge the FDA's approval of mifepott again, some of Kagan's questions during the United States versus Texas argument about, you know, single district judges in Texas getting to set national policy on every question. I mean, it hasn't happened here yet, but it well could. All right. Before we head off into the sunset, I just want to make a huge plug and remind you that it's runoff time in Georgia.

So early voting in Georgia started on Monday, November 28th for the December 6th election. That's tomorrow. So if you are a Georgia voter, head over to votesaveamerica.com to make your plan to vote. And if you want to help out no matter where you live, you can donate and find remote and in-person volunteer operations to make sure that the Raphael Warnock campaign has the resources that it needs to run successfully against Herschel Walker. So I just cannot underscore this enough. 51 senators means the difference between a true majority or being faced with another two years of roadblocks because certain people can't get with the program. And I'm not going to name names,

but I think we all know who I'm talking about. So make sure that every Georgia voter can make their voice heard again at votesaveamerica.com. Kate Shaw, produced and edited by Melody Rowell, audio engineering by Kyle Seglin, music by Eddie Cooper, production support from Michael Martinez, Sandy Gerard, and Ari Schwartz, with digital support from Amelia Montooth.