Strict Scrutiny - Making Sense of the Election and What It Means for the Court

Episode Date: November 11, 2024

After processing the election and thinking through what it means for the future of the Supreme Court, Kate and Leah dig into a Voting Rights Act case newly added to SCOTUS’s docket. They also tackle this week’s cases on the False Claims Act, compensation for hospitals that treat low-income people, the Fair Labor Standards Act, and federal securities law. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, please report. It's an old joke, but when a man argues against two of our brethren is that they take their feet off our necks. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your host today. I'm Lea Litman. And I'm Kate Shaw. And Melissa, unfortunately, is not with us today. She is literally out of the continental United States, although do not worry, she is not out of the United States for good.

She will be back and hopefully we'll get her to share some thoughts with us next week. And as you know, if you're listening, we are a Supreme Court podcast and the court, as we have said many times, is shaped by and a product of electoral politics. And this latest election in particular, we also said repeatedly, was gonna have some pretty seismic consequences

for the Supreme Court. But before we turn to a discussion of the election and the court, as well as a discussion of what's happened to the court this last week, we wanted to just take a couple of minutes and some time and some space to talk more generally about the election as such. We are obviously not an electoral politics podcast, and I'm not going to pretend I have any pronouncements or unique insights about what exactly happened and why it did, but just as a human being, I have a lot of feelings about what happened,

as I'm sure many of our listeners do, and wanted to make time for that in part because it would feel weird and disorienting not to acknowledge it, even if it's not our primary content. So we are gonna try to work through some of that. And after that, we will turn to a discussion that does link what this election might mean, more specifically to the Supreme Court. And we will finally then break down

what happened to the court the past week, including one important case added to the court's docket and also the arguments that the court heard last week. But as we said, first we're going to spend some time talking more generally. Leah, how are you doing? I am not great. I am surviving, not thriving. I was really not okay Wednesday at least.

So I'm early to bed, early to rise. So when it was clear that the initial returns were going to have things too early to call in many places, I went to bed and set my alarm for early. I ended up waking up even earlier than the alarm, like 2 a.m. to see Pennsylvania called for Trump. And I knew I wasn't going to get back to sleep. So woke up my poor dog. My partner was out of town.

We listened to some of my like cringe in your feelings music, watch the sunrise, watch it play out, and then went off to teach at 8 5555 in the morning, at which point the race had been called. And I was not okay that day. A colleague stepped out of my office before I went to teach, asked how I was, only to have me burst into tears. I have definitely been pretty numb since Tuesday night. I think a little bit less numb now, but I think that was my overriding sensation

for, I don't know, what, 48 hours maybe. And on Tuesday night, I was at ABC doing their kind of election coverage and also into Wednesday morning. So I was kind of processing, but also kind of doing some analysis on the fly. And then I went straight from Good Morning America to the Amtrak to Philadelphia to teach administrative law in the afternoon. And honestly, I think because it was just so frenetic, it hadn't really sunk in until after class. And we did talk about the election some in my administrative law class.

And then I said to students if they wanted to talk more to come back to my office after class. And we did talk about the election some in my administrative law class. And then I said to students if they wanted to talk more to come back to my office after class and a bunch of them did. And I feel like that's when it was a little bit more starting to process. And one of my students gave me this little plush emotional support potato that that is what almost sort of set me up in the same way that your colleagues query sort of set you off that morning. But then I raced back to New York to see my husband and my kids for the first time since the new reality had sort of set in off that morning. But then I raced back to New York to see my husband and my kids for the first time since the new reality had sort of set in. So that was just essentially the sort of scene setter

for how I, my Tuesday to Wednesday looked. Okay, so do you wanna talk through a little bit what you've been thinking and feeling in the Tuesday to Wednesday and since? You know, you described yourself as numb and I am at a point where this is very atypical. Like I do not have the emotional space or register for anger right now.

It's grief, maybe. Have you read the Throne of Glass novels by Sarah Moss? No. By chance? No. I've read some of The Court of Thorn and Rose as the first couple, but this is a different series? Yeah.

This is another series. Analogy might not totally track for you, but there is a world character, Selina Sardothian, where people who have magic, they need to use their magic or it kind of like bottles up inside them and just like becomes uncontrollable and like spills over. And I feel like that is going to happen to me at some point

with the anger, where I am not feeling it or using it now. And at some point, it is just going to become uncontrollable. My favorite Peloton instructor, they're not allowed to talk about politics, but said on the post-election class, you either need to lean into the dissociation or the anger. And I feel like I'm into dissociation right now. But we said this was gonna partially be about feelings.

And I think part of what is driving this for me is this was going to partially be about feelings. And I think part of what is driving this for me is this was the first presidential election since Dobbs. A big part of the Democratic Party strategy was to run on that, the consequences of the decision to point out that the Republican Party had succeeded in bringing about a world where women are dying, where women are bleeding out in hospital parking lots, and to have a majority of the country vote for that, for no lifesaving, health-saving healthcare for you is a gut punch. Like, it's not just an electoral college win. It is a majority of voters.

And for at least for me, it's been made worse by some of the pre-election and immediately post-election retrospectives that blamed flagging support for the Democratic Party on the Democrats' emphasis on women's lives. And after we recorded the last episode, ProPublica released an additional story about another Texas woman, really a girl, who died because Texas's abortion restrictions delayed her medical care.

Neve Crane was 18 when she learned she was pregnant, but on the day of her baby shower, developed a fever, severe abdominal pain. She was vomiting. She was turned away by two emergency rooms, including one that had diagnosed her with sepsis, the life-threatening and quickly developing infection, but because her fetus had detectable cardiac activity, she was sent away at the third hospital.

They insisted on multiple ultrasounds before moving her to intensive care, you know, which point is too late, her organs start to fail, and hours later she's dead. That was such a gutting story, and it really underscores how in a post-Roe world, in states with these savage abortion restrictions, pregnant women and girls are treated as basically radioactive. Healthcare providers are terrified of offering them what might be the needed, in this case life-saving medical care, which is an abortion procedure, they knew that she had sepsis, and all of the physicians and other medical personnel know that as a life-threatening and sometimes incredibly fast-developing

and deteriorating infection, and yet nobody would provide her the basic care that she needed. And anyway, the story, if you haven't read it, just does detail the excruciating kind of progression of her illness, the delay, the resulting horrific symptoms, extreme pain, essentially torture, and ultimately her death. And you said, Leah, like, that's what people voted for.

And there's no question that, you know, in, I think, tangible terms, that is what they voted for. But what is way less clear to me is whether that's why they voted the way they voted, right? And I, I too have read and listened to a lot of long think pieces in the last few days, and I'm sure a lot of our listeners have as well. And there is a ton to unpack. And I too have very little tolerance for one of the kind of rounds of recriminations that we're hearing, which is

that there was too much focus on abortion and on women's issues. But one thing that I do think is clear from the more clear-eyed analyses that are out there is that Harris really did run a kick-ass campaign and you can quarrel with a thousand discrete choices that were made. But also she was in an essentially impossible position, in hindsight at least, as basically an incumbent running in both an anti-incumbency moment and also one which people feel like deeply squeezed by inflation and high housing prices and things like that. And also that the media landscape has shifted in a way that was immensely favorable to Trump and also that he had billionaires pumping hundreds of millions of dollars into his cause

and that those things were kind of a perfect storm of insurmountable electoral forces. And again, I also want to make clear that Pod Save Guys did a great day after kind of analysis of some of this and there's data out there and there's going to be a lot more data in the coming months. And so there are lots of really smart people like trying to go deep on understanding. And in some ways, while I feel exhausted by all of already the retrospectives, I also in some ways find it easier to look backwards at what happened than to really dwell in the what is coming.

I don't know which is worse, which is harder. They're both really important, but I just don't think we really, in terms of the backward-looking piece of it, just really know yet. No, and again, just more feelings. I have been extremely frustrated by people using Kamala Harris' loss to just confirm their priors and insist,

had she done this one thing that obviously I've believed in or agreed with for the better part of a decade, she would have won. The evidence is just way too complicated for that. There wasn't a sole cause. This was not a close defeat in many respects. The idea that there was just one thing on the margins seems a little odd, but it wasn't a campaign that was about identity politics and wokeness. And the idea that she was too centrist, I mean, several more democratic

centrist candidates outperformed her as did more progressive ones. And everything that people say she didn't do, right, Donald Trump didn't do, right, specific policy plans and whatnot. You know, Sherrod Brown, who is like the champion of the working class, lost in just one of the more horrific defeats. And it's hard to overlook, as you were saying, the hyperpartisan media polarization and Republicans creation of a media ecosystem that turns out propaganda and disinformation about Democrats and their views. Turns out it's not the drag queens and the LGBTQ community doing the indoctrinating, right? It is the right-wing media ecosystem. You can have the best policies, popular policies, but if they're not effectively communicated

or breaking through, they're not going to do anything, right? And if they are not tangibly leading to people's material conditions being improved, it just doesn't matter, right? And even policies that do, right? Like the child tax credit, right? That does improve people's lives and still it's not popular. And so there's just this host of complicated conditions. Obviously, the last few years have been extremely tough on people, as you say, so people wanted to vote against the status quo. And it just so

happened that voting against the status quo and incumbent here was voting for a wannabe fascist who cozies up to dictators, is openly contemptuous and hostile of women, refused to accept his loss in an election, undermined the peaceful transition of power. And all of those factors can't get away from the reality that a majority of Americans voted for that. But some combination of looking backward and looking ahead, I don't think institutions, be they Congress,

the federal courts, mainstream media, are going to save us. And at this point, I think it's a mistake to go all in and defend those institutions that are incapable or unwilling to stand up to the administration and that people, rightly, I think, perceive as woefully failing them. Like, we need something different. If we do believe in democracy, people seem really unhappy with those institutions. So doubling down on the defense of deeply flawed and also deeply unpopular institutions can't be the sort of main action item going forward. One thing I do think is worth shoring up and defending is the constitution.

And I don't want to sound naive and suggest that that will save us either, but that there are individuals inside institutions, whether that's like various levels of government, state, federal, local, civil society, outside organizations. I don't think abandoning the Constitution in the course of abandoning institutions is the right way forward or is something that we can survive. And again, I don't want to be naive,

but I do think that what I mean by the Constitution is a number of the core values of free expression, including to dissent and due process and equality and the core principles in the Constitution will have to be defended by, again, individuals within institutions and outside of institutions. Because I think if we abandon that as well, not to suggest that it's infallible, but that it has in it the core components that actually will supply some fodder for meaningful opposition. And in some ways, that's what we have to work with. And so I think in the interest of not succumbing to nihilism, that's not something I'm willing to do.

Yeah. So I don't want to succumb to nihilism either. And I feel like we'll talk a little bit more about that. But for me, whether like shoring up the Constitution depends a little bit what you mean by, you know, the Constitution, right? Obviously, the principles you named, I think are worth fighting for, right? And trying to reinforce equality, due process, ability to dissent. But I'm worried that shoring it up in terms of the Constitution also means shoring up the court, given people's understandings of how things work and that the court is the definitive interpreter of the Constitution, even though I don't think that that's descriptively

necessarily accurate, nor institutionally ideal. But I just worry about that framing, in part because I think some of the reasons why our institutions are ill-matched to standing up to the administration and have been failing people are in part attributable to the Constitution, like Electoral College Senate malapportionment. And so I don't really know exactly how I think the best way of like framing the principles worth fighting for is, but obviously I agree.

Don't abandon everything just in favor of nihilism. Like that's certainly not what I hope would happen. But just to go back to debriefing the elections results, you know, something else I really put off by in addition to the simple monocausal explanation that confirms all my priors shtick that a lot of people have going on is, I don't think we should be blaming entire groups

or pointing fingers like in that way for the loss. Obviously we saw the huge swings among certain demographics. I know a majority of white women voted for Donald Trump. And I still am not OK with accepting the disastrous consequences that a second Trump administration will have for many of those people. We obviously just described the ProPublica story. I don't wish that on anyone.

I wanted Vice President Harris to win because I wanted people's lives to be better. And I still want that. And I also don't think it was stupid to try to win because I wanted people's lives to be better and I still want that. And I also don't think it was stupid, right, to try to win. And one of the happier and prouder things, looking back on is we saw so many pictures and got so many messages of people in like strict scrutiny gear and strict scrutiny listeners participating in organizing, getting out the vote and whatnot. And I never think it is stupid to have hope or to try, right, to make things better.

And I also believe there is already evidence that it worked. If you look at the differentials between how Vice President Harris did in swing states, where there was a ground game and more campaigning versus other states, right, she outperformed relative in the swing states, which suggests that kind of stuff matters, right? Talking to people matters, organizing, she outperformed relative in the swing states, which suggests that kind of stuff matters, right? Talking to people matters, organizing and trying to persuade

people matters. So we've mostly been talking about, you know, the top of the ticket, but can we also talk a little bit about the ballot initiatives and abortion in particular? Yes. On Wednesday, when I was talking to my students, one of the things I said was, while I obviously did not want to downplay the importance of the presidential election, there were lots of other elections too. And for people who are like in a very dark place, it might be worth spending some time

thinking about like another race for a candidate, an initiative, something that did go well. And it just as a reminder that democracy is complex and it is layered and sometimes so are people's motivations, which leads me to some results. I think we need to just like spend a couple of minutes unpacking. So there were 10 states with abortion on the ballot and it did well. Like it got majority support in eight of those states.

It actually was passed in seven of those states. The differential between seven and eight is Florida, of course, where a little north of 57% of voters did want to adopt amendment four, which would have added robust abortion protections to the Florida Constitution, but it requires a 60% threshold to actually amend the Florida Constitution, so they fell short of that threshold. You had 57% vote yes, and 56% voted for Trump. And that is just such a striking figure. And the other one that I think is just so

striking is Missouri, which is a state that has a total abortion ban, no rape exception. I think it was the first state to pass a total ban after Dobbs. And voters amended their state constitution to add protection for abortion to the point of fetal viability. And in Missouri, Trump won by 18 points. Josh Hawley was reelected to the Senate by 15 points. So do you have any thoughts on either abortions, performance overall on the ballot or those two states in particular? I'm not sure I have it on those two states in particular. This is definitely something I want to know more about and that I hope sociologists, political scientists can tell us a little bit more about because all I have is ANNAC data, you know, just based on my own canvassing and phone

making here in Michigan, which had adopted a reproductive freedom for all ballot initiative in 2022. And then obviously voted for Donald Trump at the top of the ticket in 2024, although we voted for Alyssa Slotkin, right, in the Senate and also expanded the majority of progressive justices on the Michigan Supreme Court. So, you know, there were some like happy statewide races as well. But again, some things that just came up in canvassing, and this is anecdotal, so take it with the grain of salt that it is, some of it is probably going to be

conforming my priors, although I think it's consistent with this evidence. I think there was considerable confusion and misunderstanding about the significance of state-level protections. I think some people, honestly, including medical providers, thought that a state protection for reproductive freedom insulated them from the consequences of a anti-choice, anti-abortion federal government.

That is just not true, right? State laws cannot provide immunities from violations of federal law. They can't provide defenses to violations of federal law. So I think some was a confusion, misunderstanding. Some of it was just like a permission structure of, well, like I want to vote for Trump, but I don't want that aspect of it.

So allowing yourself to do both. I think some people honestly thought it was like a signal of something to the Trump administration, where like if there was enough support for reproductive justice, then in fact, the Trump administration wouldn't sign an abortion ban by selling them this false idea that he was not interested in or willing to cater to the anti-choice elements of the Republican party,

which is obviously a core constituency. Like the candidates he's reportedly considering for attorney general, three of the five have come down and endorsed the idea that the CompStock Act should be enforced as an abortion ban. I think some other people were doing a calculus, which is, well, maybe with some additional money, I can travel and save myself. Some were subordinating it to other concerns.

As, frankly, white women have long done, people have been telling them that the Republican Party was going to attack reproductive freedom and they still vote for it. You know, I said I didn't have the emotional energy or register for anger right now. I assume that's going to come back. It has to. But I do want to just pause over the people who said overruling Roe was some great political gift or would be a great political gift for the Democrats for eternity. That was not true at the time.

And I feel like more than a few women were trying to say that. Or if it was true, right? Or if it ends up being true, right? In some future election that like votes out Republican control and exit polls indicate it's on reproductive freedom, it is going to be on the backs of women who lost their lives and health. And I look back and I think back, I remember many of the people that said it, and it upsets me.

So what are we thinking about where to go from here? I don't know exactly what the next few years pretend. I don't think anyone does. I know they will be difficult, likely catastrophic in some ways, and for some people. I know that the thought of doing 2017 to 2021 all over again, as far as organizing, resistance, and protests, just seems exhausting.

Also understand the impulse to turn in, in part because of real questions about what a second Trump administration is going to do as far as weaponizing the federal government against critics and perceived political opponents. But I'm not willing to give up and acquiesce and want to underscore that like my pointing out that explanations are multifaceted

for what happened in the election is not an excuse to excuse people of the choice they made or to buy into silly civility discourse tropes, but refusing to just go along with whatever happens doesn't mean like, I'm not going to need and won't actually be taking breaks and seeking comfort in all of the aspects of our lives that give us the energy to proceed on. I haven't been online much since the election. One of my favorite lines from Vice President Harris's concession speech was, you know, we fight back by choosing to continue living our lives and that small act of resistance, right, is something.

So it's being kind to others and caring about them and more will be asked of us. I hope we step up to help the disfavored individuals and groups who will be targeted or at least stand with them. Also having very little patience with the peoples whose immediate instinct after this is to throw Subordinated groups groups that will bear the consequences many of the consequences of a second Trump administration under the bus But I'm not gonna leave myself and the people I care about to the mercy of whatever the next four years is going to bring One other thing that I've been sort of thinking about in the last couple of days is I'm older than you

So I don't know how exactly what your experience of 2004 was, but I was in law school. I was alive then. I'm aware of that. I voted in the election. You were not a law student, I was. And so I was thinking a lot about like the day after that election as I was with my students

the day after this election 20 years ago. And I think that there has been like a real sanitization of the George W. Bush administration because he was such a more normal seeming in lots of respects Republican, conservative Republican president as compared to Donald Trump. But if you wind the clock back to 2004, it was a truly devastating defeat for many on the left. And I had been in Wisconsin just doing door knocking and stuff for Carrie with like law

school classmates and friends. It was a similar kind of background in that it was, you know, George W. Bush had become the president after the Supreme Court decided Bush versus Gore and kind of handed the presidency to him. And then for many people, it was a totally disastrous presidency, you know, Iraq war, totally unjustified, started under false pretenses. And it just seemed impossible that the American people would reward that conduct with a second term. And then they did. And so that was a kind of pretty devastating result that sank in over the course of the night and the next day. And it just felt like the Democratic Party is completely lost. And it was hard to see how it ever would come back.

And then four years later, Barack Obama was elected president. And I am not at all suggesting that, again, the second term of the Bush administration was comparable to what the second term of a Trump administration is going to be. And I also think that there have been real significant and pretty devastating changes in things like the media landscape that I think do create a totally new set of obstacles to seeing a real transformation in four years time, the way we did between 2004 and 2008. But I do think the point remains that mobilization can work and if he governs as promised, many things will be wildly unpopular and wins can change relatively quickly in politics. And so I do think that for folks for whom this is like the first experience of this

kind of political devastation, maybe that's a useful little bit of history from an elder. So we received some questions from listeners about legal issues that might arise in the second Trump administration, which we'll touch on briefly before moving on to the court and the election. So one question was, how do state level protections for reproductive freedom relate to a possible federal abortion ban or revival of the Comstock Act? You know, just to reiterate, state law does not provide a defense to federal law. It cannot immunize people from violating federal law. So what does that mean? If the federal government indicts you for violating federal law, it is not a defense

to say my state adopted constitutional protections in the state constitution that allow me to do that. Another question that we received is along the lines of can women who are killed or injured because of or by abortion bans sue either states for damages or the justices who overruled Ro and allowed abortion bans, sue either states for damages or the justices who overruled Roe and allowed abortion bans to go into effect and also emphatic no. States and justices are immune cannot be sued for damages absent

certain kinds of inapplicable exceptions here and so no the remedy it may be legal long-term it may be political short-term but it is not in those kinds of lawsuits. And now onto the election in the court. Just warning, without Melissa here, our transitions are going to be orders of magnitude worse. This is what you get. So what does the election mean for the Supreme Court? As we've talked about before, it still seems likely

there were probably going to be some retirements. In particular, Justices Thomas and Alito seem pretty likely to step down. I mean, recall that reporting about Justice Alito indicated that his wife had indicated he wanted to step down. So that in particular seems like it's gonna happen, which of course makes you wonder,

who are some possible replacements now that Donald Trump is president? And given the majority in the Senate or the apparent majority in the Senate, they don't need the votes of Lisa Murkowski or Susan Collins to confirm the replacements. So that's the landscape we're looking at. Yeah, and can I say one thing about timing also?

I would imagine also we're not just talking about in the first term, but in the first half of the first. Yes, exactly. Because midterm elections typically party in power loses seats. And there are some indications the Senate map actually could be favorable in certain ways to Democrats. So I would imagine in the next six months kind of announcement, at least for Alito Thomas, who is older, he's 76, Alito 74.

But I do feel less sure about just because I think he so relishes this kind of like elder statesman role. Trolling the libs as an elder statesman, yeah. Yeah, so who knows? But I think you're right that Alito is relatively soon. I mean, I can't believe we have to walk through the short list, but this is the world we're living in. Here we go. Obviously got to throw out

Judge Jim Ho on the Fifth Circuit, the guy who called on the Supreme Court to overrule Roe in the Dobbs case. He wrote the opinion in the Mifflpristone case in the Fifth Circuit saying that the Comstock Act prohibited the FDA's approval of Mifflpristone. And that OBGYN suffered aesthetic injury when they did not get to deliver babies. I.e., states can commandeer women's uteri to spark joy. And again, just to underscore, even Sam Alito

said the doctors in the Mipha Perston case didn't have standing. The potential replacements include guys who said they did. That's who we're looking at. They did. Yeah, and it's not just 20 years younger, but actually like a shade scarier. And yeah, 20 years younger, so Judge Ho is 51, I think.

So he is on the older end, I think, of the kind of short list, Hannes. I mean, I presume they want real young. And so I don't know. It's possible that he could be edged out by his Fifth Circuit colleague, Andy Oldham, who was also on the panel of judges that put restrictions on Mefa Prestone.

Although I think he did not write the Sparks Joy concurrence. So I suppose these are the small mercies we should note. Right, like he said they had standing. And he's 45. Yeah, he's also the guy who wrote a separate opinion suggesting maybe the entire administrative state is unconstitutional because progressives, including Woodrow Wilson, were racist.

Another name I wanted to throw out is Judge Thapar on the Sixth Circuit. So he was one of Donald Trump's first Court of Appeals nominees, reportedly close to Senator Mitch McConnell. I think now that McConnell isn't the majority leader, maybe he doesn't have as front standing. But I do think, right, like he has something going for them. You know, before the election, he called on donors to like stop supporting law schools that weren't supporting or teaching originalism. So, you know, this idea of threatening critics and whatnot

is maybe potentially appealing. I do think he is running behind the other two on crazy. So, he's gonna need to write some quickies that, I don't know, say, your body, my choice, or like something in there. Well, in the same way that Kavanaugh raised his hand with the Hargan versus Garza undocumented pregnant teenager case after he was not on the first set of Trump lists. I do wonder if he will do lists again so people can audition to make their way onto them.

You know who is, I think, not going to have to audition to make their way onto the list? I don't know if these people would ultimately actually be seriously considered, but we have to mention Eileen Cannon and Matthew Kesmerick. Oh, they're going to the Court of Appeals within the next two years. Yeah, but do they have to go to the Court of Appeals? What if they go right to SCOTUS? Yes, that's also something to look forward to.

At least they'll be on panel. To be honest, if they're on the Court of Appeals, I think there's in some ways that's actually an advantage in that they're not these real lone ranger district court judges. Here's the thing, Kate. You are assuming the Court of Appeals as currently constituted. Imagine them on panels with additional second term

Donald Trump Court of Appeals nominees, right? Then you are going to have Court of Appeals precedent. That is, a la Eileen Cannon specials and Matthew Kaczmarek, whatever he's doing. Okay, fine. You're right. It's worse. Sorry. Sorry. Sorry. I have some concerns about what this is going to do to public debates about the Supreme Court and perceptions of the Supreme Court's role, how the court will be depicted.

Will it be depicted as more moderate or an institutional check if or when it occasionally stands up to Donald Trump? Will that minimize the radicalism of all of the other things the court has done and will continue to do? To be clear, I hope that the court does stand up to Trump if it has the possibility of lessening the suffering that some of his policies might create, but I completely share that concern.

And I do think that part of the response to that is continually reminding people that this is the court that ignored section three of the 14th amendment and let Trump run for office again at all, that ensured that he would never face a federal trial, that handed him these enormous new powers and insulation from accountability as he is walking back into office on a platform of a vowed weaponization of government against critics. So any praise of any limiting decisions that this court issues, and again I very much hope there will be some, has to be paired with those reminders. And also just on kind of the lower court point which you were just talking about Leah, I did want to flag something important. So right now there are 27 judicial nominees pending in the Senate.

17 are on the Senate floor for circuit, 13 district, and then there are 10 more in committee who will be out of committee on the floor, I think, by Thanksgiving. And it is enormously important that the Senate confirm each and every one of these nominees and not hand over a single existing vacancy to Donald Trump, right? The separate and apart from what the Supreme Court does or doesn't do to check Trump, the lower courts actually will be important testing grounds for some of these Trump administration initiatives. You know, as we saw in the first Trump administration,

the travel ban was invalidated numerous times by lower courts before it was ultimately upheld in different form by the Supreme Court. That was critically important. So the lower courts will be enormous and it would just be unimaginably disastrous for the Senate to hand any of these vacancies over to an incoming Trump administration. And in the Senate, there's all these questions about floor time. It takes time to confirm judges. Some of them are going to want to like get out of town. Like they have to stay in town. They have to confirm all the judges full stop. Yeah. I mean, you know who was confirmed in the lame duck session

during the first Trump administration, Eileen Cannon. Yep. Right? Like, just do it, people. Yeah, gotta get it done. Okay, now onto what the court has been up to. While everything else has been happening, we're going to start with the case the court added to its docket before we recap the arguments that the court heard. Danielle Pletka And it's a big one. So the court agreed to

hear yet another case about the future of the Voting Rights Act, which is obviously always an ominous note on which to begin any discussion. But here are the details. The procedural history is pretty complicated, but it actually is necessary, I think, to understand what's going on in the case. So in brief the court is going to be deciding a pair of cases about whether or when it is unconstitutional for a state legislature to try to remedy a Voting Rights Act violation. That is, in this case after a court had concluded that a state violated the Voting Rights Act, the VRA, by diluting the voting power of racial minorities, is it then unconstitutional for a state legislature to try to fix that violation by drawing additional

opportunity districts for minority voters? And if you were thinking, wait, I thought the Supreme Court did like actually this one okay thing, which is uphold the VRA as a race conscious law said that the law did prevent states from depressing minorities voting power, you would be right. So that was the 2023 decision in Allen versus Milligan where the court agreed that Alabama had violated the VRA by refusing to draw a second district where minority voters had the opportunity

to elect candidates of their choice. And you may also remember that at the time we said, do not think this fight is over or Allen has definitively resolved, right? The future of the Voting Rights Act before this court. Because the justices upheld the VRA's ability to protect racial minorities voting power the year after they had overruled Roe

and their public approval plummeted. And they were at the time unsure about whether there was going to be sufficient political reaction that would result in actual constraints on their power, an actual pushback. Recall that Brett Kavanaugh provided the fifth vote for that result, but didn't join all parts of the Chief Justice's opinion, specifically the parts that had explained some of why the Voting Rights Act was constitutional. It was okay to take race into account when considering

whether states had diluted racial minorities voting power. He wrote separately to say there were some constitutional challenges that Alabama hadn't raised, but that might still be successful. And you know what, chickens, they came home to roost, right? Because now that the court looks at what has happened and says, well, we got away with dobs, right? Like we got away with everything, why not now? And so the newest Voting Rights Act case arises out

of Louisiana, which like Alabama was found to have violated the Voting Rights Act when Louisiana refused to draw a second minority opportunity district. That case was like the lower court opinion in Allen versus Milligan stayed during the 2022 midterms such that Louisiana was allowed to use its unlawful map. But after the Supreme Court reaffirmed that the Voting Rights Act is indeed a thing, at least for now in Allen versus Milligan, the lower court, which had found Louisiana had violated the Voting Rights Act, proceeded to the question of remedy.

That is, once there is a Voting Rights Act violation, what is the solution? What is to be done about it? So in terms of what does get done, sometimes courts draw the new maps. But here, the Louisiana legislature asked the court to give it the opportunity to draw a map that would remedy the VRA violation. So the legislature considered a bunch of different redistricting maps and ultimately selected one that balanced a variety of different considerations, including protecting incumbents and also complying with the Voting Rights Act.

So they selected a map that protected the Speaker of the House, Mike Johnson, and stuck it to a more moderate member of the Republican caucus. And the map, in addition to doing those political things, also created a second minority opportunity district. At that point, some white voters challenged the map on the ground that it was unconstitutional racial gerrymander because they maintained, by attempting to remedy the Voting Rights Act violation and ensure that black voters had political opportunities, the map unconstitutionally discriminated on the basis of race. Again, to be clear, here the argument is compliance with the Race-Conscious Voting Rights Act, which prohibits diluting the voting power of racial minorities.

That is the real race discrimination. So a lower court agreed with that claim in validating the map. Now the Supreme Court paused that ruling, invoking the Purcell principle because it was too close to the election. And now the court is taking up on the merits. The question of whether and when compliance with the VRA is unconstitutional. Fellas, is the rest of the Voting Rights Act unconstitutional? Oh gosh.

This case has makings of some real asymmetry with the court's earlier decision in the South Carolina case Alexander, where the court's earlier dissension in the South Carolina case Alexander, where the court per Justice Alito said, Republicans were so entitled to engage in partisan gerrymandering, court should look askance at racial gerrymandering claims brought by black voters when there is racial polarization in voting.

Here, by contrast, the court might say even where Republicans are working out partisan infighting, punishing Republicans who are insufficiently supportive of the party's direction, that that doesn't allow Republicans to try and remedy racial discrimination. You only get to consider partisan reasons when you are engaging in racial discrimination. Logic. Boom, lawyer. Hello.

What do you call it? What do you often say, Leah, the majesty of the law? Yes, majesty of the law. Majestic neutrality of the rule of law. Right there. So that's this case the court will now hear. One thing I actually just wanted to ask, if Trump won the election, that was likely to result in change positions in some cases.

Scrumetti, the Tennessee case about the state law that prohibits gender affirming care for kids. And it's being argued in December, right? So it shouldn't, that argument should go forward. There shouldn't be any change in the immediate. The Trump campaign slash transition doesn't have standing to ask the court to do anything, but like, could Tennessee ask the court to sort of put it off until later?

Is it an ominous idea to even put out into the universe? I mean, like it's possible, right? You will get a request to delay the case. I don't know that that will actually happen, since it's going to be argued before a change in administration. So I don't know if they would want to do, like, re-argument or schedule an additional round of briefing.

I mean, recall in Bernovich versus DNC, that case was argued basically immediately after the Biden administration took office and they indicated basically just in like a short note without fully explaining their position that they didn't agree with the position of the Trump administration as far as the legal theory, although maybe did with respect to the outcome. And still the court proceeded to decide the case. Decide the case. Yeah. So they could file something in January if they want to. Yeah. So on to the argument recaps, it's just kind of wild that so much business as usual just

marches on while all of this is happening, but it did. The court heard oral arguments in some cases last week. We will just relatively briefly walk through for you. First of them, Wisconsin Bell versus United States, X-Rail Todd Heath was a case that we briefly flagged last week. This is about whether the False Claims Act applies to the Federal Communications Commission's E-Rate program. This program is currently subject actually to a different non-delegation doctrine challenge. The Fifth Circuit actually invalidated it

on the basis of the non-delegation doctrine, and the SG has asked the court to review that case. But this case is about whether the program is amenable to suits under the False Claims Act, which is a statute which allows private parties to sue and to get potentially really large amounts of money, entities that defraud the federal government of money. Yes, and so the challengers say

that the FCC's E-Rate program works differently than most government programs because here the government is ordering private companies, private parties to pay into a fund that's also managed and distributed to other private companies, albeit subject to federal review. Telecom providers pay into a fund rates that are initially set by a group of private entities and then distributed to support access to broadband. And the issue comes down to what the word provides means in the False Claims Act. That know that law allows parties to sue over programs where the government provides the money and that program has been allegedly

defrauded and the challengers say the government didn't provide the money because it comes in from private parties and then it's distributed by a non-governmental entity. So during the argument some justices and in particular Justice Kagan and Justice Barrett, intimated that it's wrong to think that only one entity provides the money, and they gave a bunch of examples of that.

They were just like, there might be multiple providers. And they suggested the provider might be the principal that tells an agent to collect money and distribute it. This is a theory that got some pushback from some Republican justices who might've been thinking about the non-delegation challenge to the program that is ongoing in a separate case, since they might not want to say the telecom providers and private entity are agents of the government subject to meaningful oversight.

Yeah, it was interesting. There were a few allusions to that non-delegation challenge in this case, even though it's obviously not formally presented. But it turns out one wrinkle in the case is that setting aside the issue of whether the government provides money where it directs private organizations to provide money, it seems that the government itself has given money into the Universal Service Fund, something that the parties and the justices say the court below might not have known about. But the government's brief noted that during the years relevant to the case, the US Treasury deposited more than $100 million into the Universal

Service Fund. Oops. Whoopsie. My bad. Yeah. So, yes, maybe they overlooked this. I'm not sure. It's not like they're so busy with all the other cases they have going on that they didn't

really have time to focus on whether the case actually presented the question that they wanted to answer. I don't really know what the explanation is. But some of them just may be too busy with their extracurriculars. But in any event, so there were lots of questions to the challengers along the lines of, okay, so assume you lose on the $100 million question. And I think that suggests that at a minimum, the court might send the case back down on a theory that at least those hundred million can anchor an FCA claim and maybe claims about just the money in that fund or claims that are somehow

capped at the 100 million that the government provided, but in any event, that would essentially be an off-ramp in this case. Yeah, there was one moment we wanted to highlight from the argument in an exchange between the chief justice and the lawyer for the federal government arguing in the case in which the lawyer for the federal government pledged or at least cosplayed pledging fealty

to the Supreme Court as the highest and best source of legal authority. So we'll play that clip here. Here we have a statute that in 2008 appropriated money out of the universal service fund. That I think proves dispositively that Congress regards this as the government's money. But even if you think that what Congress has said isn't good enough, I'll turn to an even higher authority. This court's precedence. This court...

How I understand what you're saying. Hardy har har. Just love it. Hardy har har har, right? Love the idea, right, that the price of an argument is to bend the knee to the Supreme Court. The judicial kings and queens need to have their authority recognized. And they just love it. People will do it.

All right. Onward, the court also heard oral argument in Advocate Christ Medical versus Becerra. This is the case about compensation for hospitals that treat low income individuals and specifically individuals who are part of the Social Security program. The case is a follow on to the Supreme Court's prior decision in Empire Health versus Becerra. And the gist of the cases is this. So federal law authorizes reimbursements for hospitals. And the amount of those reimbursements

depends on whether the hospital provides services to people who are entitled to benefits under the Medicare program and the Social Security program. In Empire Health, the court said that the formula authorizes reimbursements based on whether the hospital treats individuals who are eligible for Medicare benefits, even though they might not be receiving Medicare benefits at the time of their hospitalization.

And the question in this case is whether the same rule applies for reimbursement rates that turn on whether the hospital provides services to people who are entitled to benefits under the Social Security program. That is whether that's services to people who are entitled to benefits under the Social Security program. That is, whether that's tied to people who are eligible for SSI benefits or are receiving SSI benefits at the time of their hospitalization. On the one hand, you might say or think, well, the textualists would say entitled to benefits means the same thing for SSI as it does to Medicare. But that argument seemed to bump up against resistance from some of the more textualist justices, including Justice Kagan. So she and other justices reframed

the question or issue in the case as what does, quote, the entitlement mean? That is, what does the program entitle you to? Is the entitlement the receipt of benefits, whether that's cash or health insurance? Or is the entitlement the eligibility to receive those benefits over a period without having to reapply for them? Yeah. So, you know, during the argument, they were noting that in the context of social security, if there are some months where an individual's income exceeds eligibility for social security, they aren't going to receive payments.

But, right, they might receive payments the following month without reapplying in a more fulsome sense. Similarly, in Medicare, you're still in the Medicare program, even though you might also have private insurance that's paying for that particular hospitalization or particular aspects of the treatment. So it was a bit hard to read where the justices were on this case, at least to me. There was also the argument in EMD sales versus Carrera.

This is the case about how courts determine whether an employer is subject to some of the requirements of the Fair Labor Standards Act, which imposes maximum hour, minimum wage, overtime, and other requirements on employers. And the FLSA has certain exceptions. It doesn't apply to all employers or all employees. If one of those exceptions applies, employers are not subject to these guarantees. And the question here is, what is the burden of proof to establish an exception to the FLSA? That is to establish that employer isn't bound by or required to comply with the requirements of the FLSA.

And it seems that the employer, which is supported by the federal government, is going to prevail on their argument that the burden of proof is preponderance of evidence rather than clear and convincing evidence, as the employees argue. The courts seem to be really focused on the appropriate remedy. That is, if they say, or really when they say, the burden of proof is preponderance, whether there should be a reversal or vacatur. The United States has suggested reversal, employer vacatur.

One thing that was interesting to me is that part of the disagreement between the parties seemed to turn on how they thought or who they thought should determine the burden of proof. So the employers in the United States said the task here is just statutory interpretation in the sense of discerning what Congress said, even though it didn't say anything explicitly about the burden of proof. Whereas the employees read the court's previous cases to say that's actually something for courts to decide based on like a judicial assessment of the importance of the underlying right.

The justices seem pretty skeptical or hostile to that prospect. Some additional evidence that the cases going the way of the employer slash United States was that the justices didn't have any follow up questions during the possible seriatim period for the employer, which you can hear here. And I'm, I don't, I'll go to. Thank you counsel. Nobody. I don't think so.

Anybody? Okay. Nobody. I don't think so. Anybody? Okay, sorry. Finally wanted to play this clip, which reflects a different understanding of the Clean Water Act than we heard articulated in October. So just play that here. Well, but I mean, I think it's the same point

Justice Alito was making, but the Clean Water Act, right? There's a big statement of purpose is there. It's necessary to preserve life and everything else. And so if you want it, if you're suing somebody under that, why aren't they put to, they the polluter, a higher standard of proof to prove that they're not doing, they're not polluting the environment. They're not endangering people's lives and through their emissions. Literally stairs in city and county of San Francisco where it seemed like some of the chiefs, Republican colleagues

thought the true purpose of the Clean Water Act was to protect polluters. No, that was a different Clean Water Act though. Right, exactly, yeah. They're gonna work it out on the remix, but. I know. What is going on here? How are these great things? I know, you know, like, what is going on here? How does this page face?

I know, I know. All right, finally, they heard arguments in Facebook versus Amalgamated Bank, a case about the required pleadings in securities law cases. That is what plaintiffs have to say in their complaint to make out a violation of federal securities laws. The formal question presented in the case is about whether the failure to disclose a past event gives rise to liability in a statement about the risk of future events. But it became clear the justices were uncertain about how the question in the case had been

framed and maybe they were unsatisfied with it because the respondent slash plaintiff's lawyer and the federal government who was supporting the plaintiff conceded that they aren't arguing and the court below hadn't held that the failure to disclose a past event that materialized necessarily gave rise to liability. Instead, they contended it depended on the extent to which a statement about future risk implied that a past event hadn't taken place, the extent to which that past event might be material, either to thinking about the future risk or material in its own right. So it's just not that clear how the court is going to respond to that, i.e. that the question presented might not completely capture the disagreement between the parties and the

precise legal issue in the case. I just get it together when you're taking cases and framing questions. Just don't take the cases... I mean, you're not taking that many of them. No. Can't you review them? Lock in, as my 12-year-old says all the time. Lock in.

Lock in. Okay, great. I think it's actually probably a good going forward mantra for all of us. For sure. Lock the F in. All right, friends, I wish Melissa was here. I mean, not that I'm unhappy to be doing this with you,

and I'm obviously happy to be doing it, but I do miss her presence. And I do feel fortunate to get to process this, at least with you and with her when she comes back. I do think you kind of referenced the tendency to want to withdraw. And I have to say, the moments and the spaces I have felt the best since early Wednesday

have been with people, with my people, like with my students on Wednesday, with you, with friends I've been on the phone with, and I'm going to see my family in Chicago for my niece's bat mitzvah tomorrow. I'm actually really, really excited to get to hug my sisters and my parents and my nieces and nephews. And anyway, I think that's a lesson that is broadly true.

And so we are gonna keep doing that. And to be here for one another. We are going to stay here with each other and with you for as long as that remains possible slash legal. But- And when we're ready, I do, to call my daughter Ryan again, we will figure out exactly how to direct our energies and we will lock in.

The anger will come back, right? It's boiling inside of me. Part of the throne of glass is, like, if you don't use your magic, it comes back really big, so you're, like, burrowing into your power and then you can, like, unleash the hugest of flames. So that might be on the horizon. I am an introvert and I did feel good cuddling my dog, watching the sunrise. That helped.

But as I mentioned, my partner was out of town. And so that night, our favorite local restaurant did a pop-up mac and cheese and wine thing. And so I went with some friends and just hugged and ate mac and cheese, drank wine, and then ate ice cream. And yeah, being with people, hugging, reiterating that we like all care about each other is important and helps.

It really is. All right. On that note, we will see you all next week. Strict Scrutiny is a Kirk and Media production hosted and executive produced by me, Leah Lippman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell. Michael Goldsmith is our Associate Producer. Audio Support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper. Production Support from Madeline Herringer and Ari Schwartz. Matt DeGroote is our Head of Production. And thanks to our digital team, Phoebe Bradford and Joe Matoski. Subscribe to Strict Scrutiny

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