Strict Scrutiny - Mensch On The Bench

Episode Date: January 31, 2022

Kate, Melissa, & Leah are joined by Dean Risa Goluboff & Tejas Narechania for a retrospective on Justice Breyer. Then FEC Commissioner Ellen Weintraub joins for a discussion of FEC v. Ted Cruz for Senate. 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. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Littman. I'm Alyssa Murray.

And I'm Kate Shaw. And today we are coming at you live in a show for our fantastic GLOW subscribers. And because we are so grateful to you, our GLOW subscribers, we have as a very special treat some very special guests. Among them, FEC Commissioner Ellen Weintraub. Hello, Commissioner Weintraub. Hello. Hello. And she also has some great strict scrutiny merch going on here.

She respectfully dissents for now. We also have with us the Dean of the University of Virginia Law School coming back to strict scrutiny for her sophomore effort. Welcome back, Risa Golubov. Wahoo wah. Wahoo wah, Melissa. It's always a pleasure to be with you all. Thanks for coming by.

And a newbie to the Strict Scrutiny family, but not to me, my former colleague and one of my favorite assistant professors ever, Tejas Narachania, who is an assistant professor and faculty director of the Berkeley Center for Law and Technology at UC Berkeley. Go Bears. Hi, Tejas. Go Bears. Thank you for having me. We also want to shout out some students we have in the audience, students from Women Also Know Law. Welcome to all of you, and thank you so much for your work. So here's the rundown of the show. We are going to start with the big news of the week,

and you might have heard there were some developments at the court. Spoiler alert, Justice Breyer retired. And so we are going to talk about the legacy of our favorite mensch on the bench, Justice Stephen Gerald Breyer with two of his former clerks, Risa Goluboff and Tejas Narachania. And then we are going to pivot. So what are we pivoting to, Kate? So we will then pivot to argument recaps, which we will bring our other guest, Commissioner Ellen Weintraub, in for, in particular, a case involving one Ted Cruz, who's now become sort of a recurrent topic on this podcast. And then we will end everything for you all by capping it all off with some very special strict scrutiny news that you may or may not have heard of.

But first, to our mensch on the bench. So we did an emergency episode on Justice Breyer's retirement. Since we released the episode, President Biden held an event with Justice Breyer, formally announcing the justice's planned retirement. And as we expected and predicted, Justice Breyer, being the mensch that he is, announced that he would be retiring at the end of the term, assuming that by then his successor has been nominated and confirmed. And this language is important because Justice Breyer seems to be saying, I am not going anywhere unless you confirm a successor. Right. So this ensures that President Biden is able to fill his seat and kind of seem to be nudging the White House along.

Right. Saying, come on, like pick a successor and hold hearings before the end of the term. The language wasn't perfectly clear, but I definitely read it to say that his retirement will take effect contingent on a replacement having been confirmed. And it's slightly different language than previous retirement letters have used. And I think it was very well done. He is always the careful drafter. So I really appreciated every jot and tittle of that letter. So we know we did an emergency episode on the day that the news of Justice Breyer's announcement was broken by Pete Williams of NBC News. But we did want to follow up and give our favorite mensch on the bench the airtime that he deserves. So we want to reflect a little bit on Justice

Breyer's legacy. And we're delighted to do that with two of his former clerks, Dean Risa Goluboff of UVA and Tejas Narachania of the University of California, Berkeley. So we're bringing big public school energy to this and nothing less for a segment entitled, May I Approach the Mench? Okay. Which is, of course, this is the first installment of what is now going to be a running segment on this podcast. Maybe we thought we would start with you, Dean Goliaboff. So can you talk a little bit about what you want people to know most about the justice that you clerked for? There's so much that I want people to know about him, but I'll start at the kind of judicial level. And then maybe we can talk about the personal level. But, you know, at the judicial

level, I think he was really a statesman. And I know that's kind of an old fashioned term to use. And he has been a public servant his whole life. And he really, truly believes in the role that he's played in the role the court plays. But that's like twofold, right? Because on the one hand, the role of the court is really important. And on the other hand, it's circumscribed. And it's only one little piece of the constitutional scheme. And I thought his speech yesterday, talking to the students, talking to future generations, right? He believes in democracy and he believes in, you know, there is an important

role for judges, but it's not the only role. And I think, you know, he does think, and I listened to your emergency, you know, podcast, so I know what you all have been saying. And, you know, I think you gave him a little bit of a short shrift, you know, because I do think he's a true believer in the role of the court and in the necessity of the court to have legitimacy in order for the people to trust the court, right? He talks a lot about the rule of law, the habits of the rule of law, the people, you know, following the rule of law. And, you know, we all know about the kind of majoritarian difficulty and the least dangerous branch, right? His view is the court has to earn the trust of the people again and again and again.

And you all may think they're not earning the trust of the people right now. But I think he thinks there's a value to articulating that aspiration. And I think he has lived that aspiration. He's also lived other things, right? And he's written many, many dissenting opinions in his, you know, 27 years as a minority person on the bench. But it's more complex, maybe I'll say, than I think you all are giving him credit for. I have other things to say, but I'll just stop there for now. So a rebuttal. I know we were hard on Justice Breyer for about, it's really only been about six months

because we were firmly in the Breyer camp. We were in the Breyer hive from way, way back. And there was a little shift, I think, because we were worried about the prospect of him perhaps staying on too long and there being another sort of Ginsburg scenario. And we did worry about that. But I think part of our frustrations were because we knew he was the statesman. And I think we sort of saw it as you know what the worst case scenario looks like. That can't be what you want. And so we just hope that his better angels would prevail. And they have. And we are back. We are stalwarts of the briar hive. We're back.

We're back. I saw Leah's tweet today, right? I mean, how can you not love the person who gave that speech, right? Exactly. But it's of a piece, right? And I kind of think, you know, you all were speculating what changed between then and now. And partly, like, that's the point, right?

He did it on his terms, and he didn't do it at a particular political moment. And I think that's important to him. I haven't talked to him about it, but I imagine knowing what I know about him, that that's important to him. But I'm glad he's back in your good graces. I think, I had been thinking yesterday, I'm going to let Tejas talk in a second, but let me say one last thing. When I was talking to various outlets yesterday, I kept thinking, can I use the word mensch? Should I use the word mensch? He's such a man.

And so it gives me no end of pleasure that that is the word you're using. He is a true mensch. He is a generous, gracious, warm, humane, lovely person who just is open. He is just an open and wonderful person. So I think we clerks adore him for good reason. And I'm glad that you all are back in the fold. Tejas, can you tell us about your justice? And you can beat up on us too. You can dunk on us all you want. We are a podcast open to a diversity of views. But I too just want to underscore, you know, what I said yesterday was part of what was so difficult about seeing him on the pro-Supreme Court press junket tour in September was it just seemed to me inconsistent with the person I observed. I didn't have the opportunity to clerk for him, but, you know, clerked next door to him. And I was like, why is he not being the mensch that I know he is? Like, he is so wise. He is a statesman. Like,

he understands pragmatics and, like, practicalities. And I know he can see this, but anyways, it... We should have known, Leah have known. A good pot roast needs to braise. You didn't give him enough time. He's told us in his pot roast recipe the importance of braising and time, and we did not take that seriously. So we are chastened and we repent. Tejas, tell us about your justice. I want to say one more thing on that thread, and then I want to say something else about Justice Breyer. So on that thread, I think

I hear all the criticism, but I'm also glad that he had the opportunity to do this on his own time and on his own terms. And I think the thing that is sometimes lost in the conversation here, and this picks up on what Risa said, is that he's such an institutionalist. He cares about the court as an institution, about the legitimacy of the court and the judiciary. And I think there's a difference in how we as outsiders perceive the court and the judiciary and how he, as a justice and a member of the judiciary, thinks about the institution and the things that he can do from the inside to build it up. And that, like, I think sometimes that perspective, that difference in perspective is lost.

But that's as much as I want to say about this because that's all in the past and he's made the decision that he's made. And yesterday's speech, I tweeted yesterday that his speech made my heart smile because I just, it was the most perfect SGB speech. Maybe I'll say one more thing sort of at a high level about him, which is like, it's kind of a cliche at this point, reading all the retrospectives on Justice Breyer. But the thing that he cares the most about is making government work for the people.

I'll be a law professor for a second and say that there are two prongs to that. The first prong is that government has to work. And the second is that it has to work for the people. And so he's famous for these hypotheticals, these long-winded hypotheticals from the bench about what if this and that and this and that. And I think the point behind those is that he is just really trying to figure out what's going to happen. He really wants to know if I rule this way or that way, what's going to happen. Like he really wants to know if I rule this way or that way, what's going to happen. And so he's deeply, his jurisprudence is so deeply pragmatic, and he really wants to know, and really wants to get a sense from the people that know the case the best, what's going to happen. So that's making government work, where for the people,

I think, you know, he has this, and Risa, you talked about this, jurisprudence centered around the institutions of democracy. He's really not interested in an imperial judiciary. Yes, like there's this counter-majoritarian difficulty. He wants to know, you know, what role the courts ought to play, but he's really, like he's, I think he's deeply engaged as someone who spent time in Congress, in the executive branch, and in the judiciary. He's deeply, deeply engaged with the question of who decides. Where does expertise lie? Where does accountability lie? Who's the right decision maker for these sorts of questions? And I think you'll see that thread in a lot of his jurisprudence across areas, like certainly administrative law, but even in places like things that I care about,

intellectual property or antitrust and telecommunications, constitutional law, obviously. It's just, he really cares about making sure that the people's voice is heard and that accountability and expertise is in the right place. And I think you saw that in the vaccine mandate opinions too.

So that's the big picture jurisprudential stuff that I have to add on top of what we already eloquently said. So Risa, you suggested you also wanted to touch on personal stuff. So maybe we could just ask both of you as well, if there was something you wanted to share with our listeners kind of about the justice, you know, personally or interpersonally about what it was like to work for him. Somebody said the justice is himself, right? And, and no, and in a beautiful way, right? That, you know, he's not a cookie cutter, and he's an authentic person. And he'll go on a zoom for hundreds of people from his bedroom, right? And, and he, you know, I have the camera slightly

like looking up his nose. Yeah, exactly. Like he, he, he, he is such a human being. He's such a bench. You know, he models what it is to be a human being for his clerks. And, you know, that I think that's true all the time. You know, everyone, you know, your parents come and he has them for tea and your son climbs under the coffee table and he reads them a book. And, and, and he just, you know, he's, he's in this project and you're in it with him. And he talks about his clerks as a family and you, you really feel that. And I just think lots of people have admiration or respect for their justices or their judges or their bosses or whatever. I don't know that there's,

I don't know of anyone who has like equal parts admiration for the brilliance and adoration that he has from us, you know, and you know, I, I could tell stories, but I'll tell one story. So, you know, he was the junior justice for a very long time, second longest in American history, 11 years. And as such, he was on the cafeteria committee. You know, you don't get the choicest committee assignments when you're the junior justice. So he, we talked about going on a tour of the cafeteria for a long time, and he really wanted to because the justices eat in a separate dining room. So he wanted to see what the cafeteria was like. And there was this clerk in another chambers who was an eater and wanted to go on the tour with us.

And we had told the justice, you know, he had thoughts about the cafeteria. So the justice, you know. Wait, wait. What does it mean to be an eater? An eater. Like there are people who they love food and they think about food and they're eaters. Oh, foodiesie. No, not a foodie though. I don't say a foodie. Like an eater. I don't know. Maybe it's a Jewish thing. He's an eater. Is that not a word you all, you don't know? Okay. Very familiar with mensch. Not so familiar with eater. So I don't know if it's a Jewish thing

or not, but eater. He's an eater. So the justice said, okay, I'm ready to go on our tour. Let me call that clerk. So we gave him the number. He calls the clerk in the other chambers. He says, hi, it's Justice Breyer. We're going to go on a tour of the cafeteria. The clerk says, who is this? This is somebody pulling my chain, hangs up the phone. Justice Breyer calls back. He says, who is this? Like, is this Vince? Is this Mike? Who's doing it? Right. Hangs up the phone. So the justice finally, you know, gets through to him and he realizes, no, no, it's Justice Breyer. And Justice Breyer, he had no, he wasn't upset. He wasn't offended. He was just like, I'll just keep trying. You know, he's the optimist. He is. I'll keep telling him it's me until he knows it's me. But what justice picks up the phone, calls another clerk for a cafeteria, you know, he's just, that's a really small thing, but I think it's emblematic of who he was.

I love that story. Can I ask, Kajus, maybe, like, I know a little trivia about Justice Breyer, and I actually would love to know more if you two might enlighten us. It is my understanding that Justice Breyer's wife is the daughter of a British Viscount. So he is royalty adjacent, yes? Do you think that Stephen Breyer is in the Meghan Markle hive? The right answer is yes, unless you want Melissa to leave the Breyer hive again, just to be clear. I'm going to let Tay just answer that one.

I have no way of knowing. So does he have any like aristocratic tendencies? Like you said he would have you for tea. Was it high tea? It was a very nice tea service. He's an elegant man, right? He is an elegant man. He's both elegant and he rides his bike and drives not like he has lots of contradictions, right? High theory, but very fact based, right? Elegant, but incredibly humble, right? Like, so he's a very elegant man. Dages, what do you think? He is an elegant man. And the tea service figures prominently in my experience with Justice Breyer. So I remember very distant. So I remember my interview with him. So when I interviewed for the job for the clerkship, and someone told me in advance, he's going to ask you if you want a cup of tea. And so you should know if you want a cup of tea or not. And I was like, yeah, whatever. I didn't give it a second thought Justice Breyer. So I said, yes, it was the worst decision I could have made. Because now here I am talking to Justice Breyer with this incredibly

hot scalding cup of tea and a saucer. And my hand is shaking because I'm nervous a little bit about talking to him. But I'm also nervous I'm going to spill this tea all over my suit. And then like, what's going to happen to this interview? So I didn't drink the tea, but I awkwardly held the teacup the whole time I was interviewing with him and then put it down and left it and i thought for sure that was the thing that was going to torpedo my chances was that who is this buffoon that came in here asked me for tea but then didn't drink it and just left it behind but he's an elegant man and the tea service was was was very nice don't you think every clerk interview takes the tea and doesn't drink it? I mean, that has to be true, right?

I think so. Like in retrospect, that seems like that would have been everyone's experience. But it didn't feel right in the moment. I love everything about that. I love that it was actual tea and not proverbial tea like Nina Totenberg tea. Like it was just it was actually like Darjeeling. It was real tea. Oh, it's real tea.

Yeah. Love it. I loved hearing President Biden talk about all the different acts in his life so far. And he's obviously, he's 83, but he is totally vigorous. And I could see another act. And I'm curious if you have a sense of what he might devote himself to doing. Oh, Melissa is gesturing. Those of you listening can't see it. But- I'm telling you. The podcast, obviously the podcast invitation is out there.

He'll almost certainly take us up on it. But if he decides to do something else before picking up podcasting. Can I sketch out my idea? The idea, Tejas, is a segment called May I Approach the Mensch? And it would be like Cody Rigsby XOXO where Justice Breyer would read letters from individuals who write into him seeking advice, and he would offer it in the way that he does, right? With hypotheticals, with lofty thoughts. He would be the top of every podcast chart, every podcast chart. Yes, it would be amazing. What do you think, Tejas?

I'm sure it would be a great segment. I think you should ask him. Okay, well, obviously we will. You should definitely ask him. He'll do it. That would be amazing. He would be great. It would be wonderful. It would. So I guess I have two predictions. The first one is, you know, he might sit by designation on the First Circuit, right? I think that's definitely a possibility. And then the second one is, you know, he's been, he's been incredibly, you know, among those he's been generous with have been folks from Supreme Courts in other countries.

He's been very much a booster for institutional reform and constitutionalism. And I think that more travel and more conversations of that sort could very well be in the future. Yeah, those were the exact two things I was going to say. I think he was going to say he's going to sit on the First Circuit. He loves, I think he really loves that building. He played a role, I think, in the redesign of the First Circuit building,

and I think really has a lot of admiration for the work of the First Circuit. And yes, he cares a lot about constitutionalism abroad. And I suspect he will spend some time with the Supreme Courts of other countries and their justices. So maybe just to kind of wrap up, you know, this Justice Breyer retrospective, we did want to highlight some of the statements issued by Justice Breyer's colleagues. So Justice Kagan's in particular particular was short, but also overflowing with genuine affection. She said, I'll miss Steve Breyer every day after he has left the court. He is a brilliant and wise judge whose vision of the law will remain of great importance. He is the

best possible colleague. He believes in making institutions work to strengthen this one. He listens to other views with care and generosity and does everything he can to find common ground. And he is the best possible friend. He is kind and warm and funny. He has boundless optimism and a great heart. I can hardly imagine the court without him. I really loved that one. I love that so much. And we had this exchange afterwards, which was, you know, because I felt like we were picking up on a little tension between the two of them occasionally in oral arguments where she sort of said, you remember the moment where he said we were gonna ask the same question? And she said, I doubt it. And, you know, it was like, is there? Anyway, so it's all

clearly gone, I think, to the extent that we were even right that it was ever there. And she clearly loves him so much. And there was a Chiefs, which I sort of felt mixed about. It was clearly affectionate, right? He called him an energetic justice and dear friend, but it we're a little snarky. And we all know how genuinely we love Justice Breyer. So I think we can all give everyone a little pass on the snark. And also, this is something where Justice Breyer has poked fun at himself about it as well. So I think it would be met with kind of like a giggle from Justice Breyer. All the statements are compiled on the court's website, and they're very much worth reading.

They're all beautiful. Also just wanted to highlight a few things about the presser he did with President Biden announcing his planned retirement. So as we've kind of alluded to, the speech, as Taylor said, was kind of peak SGB. And I was really glad people got to see the Breyer energy and the Breyer affect that is just so endearing. He was like overcome with this bubbling intellectual energy during his remarks. The smile, the hand gestures, him holding up a pocket constitution.

And it was just a very Breyer, Breyer speech on so many levels. Although during the remarks, he made what I thought were pretty pointed, you know, for him and really for any justice suggestions about, you know, the threats our country faces and how, you know, its future isn't a given. So he referenced how both Abraham Lincoln and George Washington referred to this country as an experiment. And he specifically highlighted Lincoln's warning from the Gettysburg Address. We are now engaged in a great civil war to determine whether that nation or any nation so conceived and so dedicated can long endure. And then he basically said.

And I say, well, I want you and I'm talking to the students now. I say, I want you to pick just this up. It's an experiment that's still going on. And I'll tell you something. You know who will see whether that experiment works? It's you, my friend. It's you, Mr. High School students. It's you, Mr. College students. It's you, Mr. Law School students. It's us, but it's you. It's that next generation and the one after that, my grandchildren and their children. And then the opening and the closing of the speech were just all that is good about Justice Breyer. So after President Biden introduced him and thanked him for wonderful service, Justice Breyer said, Thank you, Mr. President. That was terribly nice. And believe me, I hold it right here. It's wonderful. And he's like clutching his heart as he says this. And then the ending, I just love. So after he set up the speech around how he talks to students and tells them we are engaged in an experiment about whether we can have a multiracial democracy. He just ends with, they'll determine whether the experiment still works. And of course, I am an optimist and I'm pretty sure it will. Does it surprise you that that's the thought

that comes into my mind today? I don't know, but thank you. And then walks off stage, like Breyer out, mic drop. It was just, you cannot get more Breyer than that. And I just, I love it. He is an optimist. But you know, it turns out as, you know, I thought like, he's not naive. Like he is like a deep, deep pragmatist as well. So maybe we can end there. Risa and Tejas, thank you so, so much for joining us for this segment. We really appreciate your time and Tejas, thank you so, so much for joining us for this segment. We really appreciate your time and your sharing your thoughts and experiences with the justice with our listeners.

My pleasure. Really fun to be here. Thank you for having us. Yeah, thank you for having me. It was a lot of fun. And it's always wonderful to have the chance to reflect on him and my time there. Hear, hear. Yay for the Breyer Hive.

Breyer Patch. Yeah, one of our listeners in the Q&A just suggested Breyer Patch, which I think is a great one. Yeah, I like that too. Maybe that's what it is. Breyer Patch. I love it. I love it.

Okay. Let's pivot now to talk about the cases that we haven't had a chance to debrief. The first case we're going to talk about is FEC versus Ted Cruz. Before we get to it, I think we want to stop for a moment and play a quick clip from last week's show with Nina Totenberg, just to remind us of who we're dealing with here. Nina, is Neil Gorsuch the Ted Cruz of the Supreme Court? I think that's going too far. Is it?

I don't know. You know, the truth is, I don't really know. But I think that Justice Sotomayor, for example, has genuine affection for him. So I and I don't know any senator who has genuine affection for Ted Cruz. So I don't think that you can that there's a parallel there. So with the scene thus set, we're going to talk about the case. And we are so excited to be joined to do it by Commissioner Ellen Weintraub of the Federal Election Commission. So Commissioner Weintraub, thanks so much for joining us for this part of the show.

It is great to have you. Thank you, Kate. It's a pleasure to be here. So the case involves a challenge of a piece of what remains of the campaign finance regulations enacted in the 2002 Bipartisan Campaign Reform Act, or BICRA. And the court actually heard oral argument in the case two days shy of the 12th anniversary of Citizens United. So the basic sort of statutory and regulatory structure here is that BICRA has a lot of different provisions.

And the one at issue here basically provides that post-election contributions, so contributions right made after an election has already happened, can be used to repay up to $250,000 in personal loans a candidate has made to their own campaign. And then there's a federal regulation that says that a campaign may use pre-election funds, right, so money given before the election, to repay more than $250,000 in personal loans made by a candidate, but only if repayment occurs within 20 days of the election. So this kind of statutory and regulatory scheme that basically governs how candidates can get paid back if they lend their campaigns money. The case arose when the day

before the general election, Ted Cruz loaned his committee $260,000, which is $10,000 more than the maximum amount mentioned in the statute and the regulation. So maybe, Commissioner Weintraub, can I ask you first whether I described the sequence of events in the statutory and regulatory framework properly, and then maybe you could talk about, like, what is the purpose of this rule, both the statute and the regulation? What interest or interests do they serve? Sure. And it's the question of when the money got repaid and what money was used to repay him is actually quite interesting, because when the case started, it was assumed that money that came in before the election to repay the $250,000, which means it would have been perfectly legal under the statute for him to repay himself the extra $10,000 from post-election funds. And of course, he had plenty of money in his pre-election funds to pay the whole thing.

The fact that he made this contribution to himself, that he made this loan to his campaign the day before the election, when he had over $2 million in the bank, as you said, shows that he didn't need the money. He was just doing it for the purpose of setting up this litigation. So there was a lot of talk during the argument about standing and whether, in fact, he had standing to bring this case, both on a, you know, sort of more esoteric standing basis, but in terms of him having generated the case on purpose, but also just on the factual basis that he didn't use post-election money. So I would argue that as a factual matter, he had no standing to bring this case. He was not injured by

this law in any way. So that's, you know, that's one issue. We can talk some more about the intricacies of standing. But why is this here? Why do we have this law? Because Congress was worried that when contributions come in after the election, after it's a done deal, right, we know who won the election. It is no longer a question of people who wanting to, you know, help their guy across the finish line or express their political views that this is the candidate made himself, the money is going directly back into the candidate's pocket. And if ever there is an opportunity for corruption, it is when the money is going directly into the candidate's pocket rather than being used for campaign purposes. And I thought it was really interesting in this discussion, in the argument, that some justices didn't really seem to get that. That argument did not resonate

at all for some justices. You know, it's like, well, what difference does it make if the money goes back into his pocket? Wasn't it his money in the first place? Well, I thought that was quite charming because obviously these people have never had a loan that wasn't repaid. But once you take the money out of your pocket and you give it to someone else, getting it repaid is not 100 percent certainty. Now, in this case, maybe it was because he knew he had far more money in the bank than he actually had spent on that election and that he had loaned to himself. somebody with far less resources than Senator Cruz, who really, you know, went to the mat on their campaign, invested in themselves to the point where they really desperately needed to get that money back. They sort of made a bet on themselves that they could win and put all of their resources into it, loaned themselves that money on the hope that they would win, and then

they could pay their money back, and then would be kind of desperate to and maybe would be willing to make promises. And there was legislative history on this, that there was concern by Republican legislators in Congress, Senator Pete Domenici, among others. Members of Congress after the election would be inclined to make promises or would be tempted to make promises, exactly the sort of quid pro quo corruption that the court has said it is perfectly constitutional for Congress to legislate in that space because the money would be with interest on the loan. So they weren't just getting back like the flat rate, but were making a loan and getting back some interest that might be dealt with separately. But I thought that there was also an example of that. Yes, they can charge interest if they want to. So a big question in this case is how to think about corruption and the risks of corruption

and how serious those risks are and whether Congress should be allowed to regulate on that basis. And I think the following clip sort of encapsulates what the current court's view of the whole question of corruption is. Speaking of artificial things, could you turn my question on standing into one on the merits? How are you supposed to weigh such imponderables such as the marginal burden on the exercise of First Amendment rights against the marginal assistance in preventing corruption? And then in response to that idea, we had Justice Kagan offering a rebuttal. I have to say the opposite intuition. I mean, I understand the equalization argument. And if I think about it, I can understand how an equalization interest would support this law. when contributors find a way to put money not in the campaign but into a candidate's own personal

pocket, when the question is contributors repaying indebtedness of the candidates so as to make the candidate himself financially better off, richer, that to me screams quid pro quo corruption interest, not equalization interest. She was, I think, so effective in this argument. So she's making the argument here that, look, when you, and Commissioner Weintraub just basically said the same thing, when you donate to a winner after an election, you are doing something that comes kind of close to giving them a gratuity or a bribe. You are not trying to increase the chances that they win. They already have won. And she said this very clearly, I think, in different ways at different points. And she clearly is looking for a way for the court to avoid striking this thing down. And she also at one point floated this idea that the regulation

might not have been even authorized by the statute and thus might have been invalid the regulation, which was in her view really what Cruz's quarrel was with, that the regulation was potentially could be viewed as unauthorized by the statute and thus the court could entirely avoid ruling on the First Amendment question. There was also this mention that I thought was interesting of the Millionaire's Amendment. So I hadn't initially realized that this provision at issue in this case was originally part of what was known as the Millionaires Amendment, which was this quirky little provision of BICRA that was in effect for two congressional cycles, one of which was this extremely consequential cycle in which then-Senate candidate Barack Obama took advantage of the Millionaires Amendment to basically let you relax the contribution limits if you were

running against a self-financed millionaire so you could get bigger donations. And the idea was it was going to do some work of like equalizing the playing field to a degree as between really wealthy candidates who could fund their own campaigns and other people. And in this really awful Alito opinion in Davis versus FEC, the court basically like deals this death blow to the whole idea that it's permissible for Congress to try to do any kind of equalization and lays the groundwork in lots of ways for Citizens United. But Davis is a very, I feel like, less known campaign finance case. But in any event, this clip, I guess I wanted to play from Charles Cooper, who's representing Ted Cruz, reflects, I think, not only this really dismissive attitude toward Congress acting to minimize the power imbalance between wealthy and non-wealthy candidates,

but also seems to question whether Congress can ever act in ways that reduce the opportunities for improper influence by donors on politicians. So Congress certainly believes there's legitimate reason for post-election contributions but even if they are just what the government is called makeup contributions designed for no purpose other than to associate now exercise the first amendment right to associate with the winner and to hope that that will result in the kind of influence and access that support for a candidate begets, and that this court has in several different cases recognized that Congress cannot seek to deter, as opposed to seeking to deter and to prevent actual quid pro quo corruption, then those are reasons, Your Honor, those are reasons enough for a contributor to come after an election and make a contribution to the winner. It seems to me that this is a both a breathtakingly cynical view and Cooper kind contribution to the winner. It seems to me that this is both a breathtakingly cynical view

and Cooper kind of saying the quiet part loud and offering an incredibly expansive reading of what Citizens United says. Like, Citizens United does say ingratiation and access are not corruption, but certainly doesn't say, you know, the campaign finance laws have to enable people to seek access and ingratiation, and if they don't facilitate it to the fullest extent possible, the First Amendment is offended. And I just, I don't feel like I've, that was a broader and more aggressive version of that argument than I had heard before. Was I, am I

right, Commissioner Weintraub, that that's, there's something kind of new in the tenor of that argument? I read that exactly the same way. And I have the same response to Davis. Most people haven't heard of that Davis opinion, but there is language in there that really does, you know, just kind of make my skin crawl, honestly. But Cooper was making, he was throwing red meat to certain members of the bench who are all in on this notion that leveling the playing field is foreign to the concept of the First Amendment. It is abhorrent. It is offensive. It really, really bothers them, the notion of leveling the playing field. They think that the First Amendment really is all about enhancing the power and the influence of wealthy people. I love the metaphor of throwing red meat. I got this

big Tiger King vision of Charles Cooper as Joe Exotic throwing skates. Well, I also got this picture of Sam Alito just like drooling at the prospect of sticking the knife in the back of Bikra. And it's just like a rage spittle, also excited salivation thing. Anyways, I just want our listeners to think about that for a second. Okay, I didn't say any of that. But I will say that Brett Kavanaugh, when he was on the DC circuit, wrote an opinion, again, you know, another opinion that didn't get as much attention, called Emily's List VFEC, in which he, by the way, took a very aggressive role in terms of saying,

well, in order to issue this opinion, I have to go back and just explain my entire philosophy of what campaign finance jurisprudence is all about. He really didn't. But he took a very aggressive stance. And that was when he was on the DC circuit, where he took every opportunity to try and address campaign finance. And in practically every instance, foreign money being the exception, took a very restrictive view of what could be regulated in the campaign finance sphere. And in this decision, he said, in perhaps the most important sentence in the court's entire campaign finance jurisprudence, Buckley stated, the concept that government may restrict the speech of some elements of our society

in order to enhance the relative voice of others is wholly foreign to the First Amendment. And I've always thought it was really interesting that that phrase is used, that it's wholly foreign to the First Amendment, because, of course, if you look at how other democracies function in many other democracies around the world, this notion of leveling the playing field is actually built in because they want people to have equal access. They want, as you were saying earlier in your segment about Justice Breyer, they want the people's voice to be heard. to our court on expenditure limits. They said if you don't have some limits, then the wealthy can drown out the voices on the other side and then the people will be deprived of the opportunity to fairly evaluate the arguments on both sides of an issue

or on both sides of a campaign. And I think that it is interesting that Justice Kagan in the clip that you played earlier uses the word intuition. And I think it is. It's a gut reaction. It's an intuition, the way people approach money and politics. Some of these judges and justices come at this issue from a very different place, certainly from my gut, what my gut tells me. And I think what most Americans feel, you know, if you look at polls that have been done about the state of our campaign finance and how people feel about it, people feel pretty bad about it. They don't like this system where the rich have so much influence. In Citizens United, the court held very plainly that ingratiation and access is not corruption. And they seem to feel that in that decision and in several others, that access for donors, that giving rich people better access, more opportunities to lobby for the kinds of laws

they want, that that is not a bug, but a feature of representative democracy, that that is, in the view of some justices, the way it is supposed to work. And I think for a lot of other people, that sounds bad, that the wealthy would have that much more influence. But any kind of limit on the, I think there was a very strategic and very intentional use of that phrase by Mr. Cooper, because he knows the reaction that he's going to draw from the court on all that. And as I said, I think it is very much, it comes from the gut, the way people react to money in politics. It's so interesting that you speak of the way that other constitutional systems or just other democracies deal with the question of inequalities in the campaign finance system, and they bake in efforts to equalize that. And

we apparently like the disparities, but that's only at the federal level, because there are actually lots of states that mirror what some other countries do. Like New York City, for example, has a campaign finance system that does actually try to equalize so that there aren't gross disparities in campaign finance. And so the idea that this is somehow uniquely or exceptionally American isn't actually true if you pay attention to what's going on in the other systems within the United States. Well, there have been a lot of interesting efforts at the state and local level to come up with alternatives. And New York City has a very interesting model, and there are bills in Congress to try and replicate that model at the federal level.

But even at the state and local level, you still have to comply with the First Amendment. And if those laws were explicitly tied to this concept of leveling the playing field, then I know you all had mentioned this in an earlier podcast, by Senator McConnell and was written by none other than Don McGahn, who I served with on the FEC before campaign finance. And basically, their argument was, hey, while you're in the neighborhood, why don't you strike down some more? Strike down what's left of the Bipartisan Campaign Finance Act, which, of course, Senator McConnell has been trying to do ever since it got passed. Hence the McConnell decision where he at first failed, but he's been making better progress since then. As you will recall, in Citizens United, it started out as a nice little disclosure case. And the FEC, in fact, won on the disclosure issue. But before the court got there on the very last day of the term that year, they said, hey, guys, we've decided we want to look at striking down some other laws that weren't even

raised by the petitioners. So we're going to hold this for re-argument and make this into a much bigger decision. And I was gratified to hear that there was no discussion of that in the oral argument. So that was good. And I have my fingers crossed that whatever the court does, it will stick to this particular small provision of the law. I would love to see them overturn the lower court decision, but I hope they will not go any further than what is in the lower court decision. What do you think the odds are of that? I mean, because like there could be two options here. It could be a sort of minimalist decision, which is what I think you're hoping for,

where they only focus on this. But that would just be sort of laying the groundwork for some future challenge. I mean, maybe that's sort of the incremental Roberts Court two-step, where it just sort of chip, chip, chip, chip away. And then finally, there is, in a couple of years, the death blow. Or they could, with their six to three conservative supermajority, just, you know, you only live once. Let's be legends. Let's go for it. And I think you make a really good point.

You know, this was legislation passed by both houses of Congress with bipartisan support. And Mitch McConnell has used the courts as a way to advance something he could not achieve in majoritarian politics. Well, I don't know what the court's going to do. But as I said, I'm hoping for a narrow opinion. But I do, as I said, you know, if people are reading the tea leaves and based on the argument there and based on the composition of the court, they're assuming that the court would actually like the lower court decision. Why was the case filed? I mean, and that's, I think, a really good segue to talk about the standing questions, just sort of, is this an actual adversarial dispute?

I mean, the case was filed because Ted Cruz wanted his name on a decision striking down a piece of campaign finance law. So that's just my theory. But, you know, and the one reason I think that is because, you know, as Kate's kind of summary of the case suggested, you know, it was ginned up where he donated or he gave a certain amount of money to his campaign that exceeded, you know, the statutory limit on what could be repaid with post-election contributions and then, you know, waited to pay back the loan until after, you know, the regulation then said it had to be treated as a contribution, i.e. it couldn't be paid back rather than a loan. And so there's a complicated question here about whether the

campaign has standing to challenge the statute versus the regulation. And so the statute says you can't repay more than the quarter of a million dollars with post-election contributions. But, you know, as Commissioner Weintraub said, it seems like there is evidence that the campaign used pre-election funds to pay all that back. And so then they're not actually prohibited by this law from paying back the rest of the loan. And so the campaign has this theory whereby because the regulation injures them, and the regulation again says you can't pay back a loan more than 20 days after an election. And the campaign says, well, that regulation is preventing us from paying back the loan. So therefore, we can challenge the statute. And the campaign says, well, if we're injured by the regulation, we're necessarily injured by the statute.

And my thing is, even if that's true, that wouldn't entitle them to an injunction against the statute. That would just entitle them to an injunction against the regulation because that injunction would then fix their injury. Because again, it's not the statute that is preventing them from paying back the loan. So again, even if you accept the campaign's theory about why they're injured by the statute, that the conclusion doesn't follow that the court should enjoin the statute and prevent the government from enforcing the statute in other cases. I don't know. That's just my two cents. No, I totally agree with that. And the regulation says you have to do it within 20 days of the election if you're going to pay yourself back with these pre-election funds. And really, that's just because that's the reporting deadline.

After an election, you have to file a report 30 days after the election. And 20 days after, it's as of 20 days after the election. That's the cutoff point for the information that you're going to have in your post-election report. And this way, whether the candidate has made a loan or a contribution would be clear from the very first post-election report. I think it's a rational rule that was adopted by the commission, but not a mandate, it certainly wasn't mandated by the statute. If you look at the statutory words, there's nothing in there about 20 days. And that is the only thing that is

prohibiting the senator from having his loan paid back, that extra $10,000. It's the regulation. It is not the statute. He is not injured by the statute. You can look at the plain words of it. It's just not there. Just to continue our mensch on the bench segment, I did want to highlight a moment from argument from our boy, Stephen G. Breyer, when he appeared to give some kind of shout out to people who are doing bar prep or to first years in their torts classes. So let's play that clip here. The lawsuit. Coffee sounds like. What's the tort doctrine that used to be, you know, two workers and he said it's his fault. And the other one says, well, you did a lot of this yourself. He's, of course, talking about contributory negligence. So there we go. moment in the standing discussion, both from Mr. Cooper and from the bench, from Justice Thomas,

where Senator Cruz was standing in the footsteps of Homer Plessy, trying to integrate train cars. My final question is, going back to your standing, you said a number of times that these self-inflicted injuries can't be a basis for standing. At least that's what I understand. But how would you, using that at that level of generality, what would you say about Plessy sitting in the wrong car? Yes, there is this history that people can set up a test case, but I just thought it was, I don't know, shall we say ironic that they would look back to a precedent involving trying to establish equality in order to justify this case, which is really all about perpetuating inequality. Ted Cruz is a civil rights icon, and I can't believe anyone is suggesting anything to the

contrary. Well, leaving aside the fact that he is a civil rights icon, I wasn't surprised by this line from Justice Thomas, in part because in the wake of Citizens United, he gave a speech somewhere where he spoke about the Tillman Act, which was named for South Carolina's Benjamin Tillman, who is a senator, and as Justice Thomas noted, was also a rampant segregationist and white supremacist and member of a number of groups, I think sort of KKK adjacent at the time. And he noted that one of the reasons why Tillman and his ilk opposed or were in favor of campaign finance was that they did not want corporations funding the campaigns of those who were interested in or receptive to the prospect of integration or more fulsome participation of African Americans in the political process. So he sort of painted Citizens United as a kind of recuperation of civil rights

in this really interesting way. Adam Liptak talked about this in a column earlier, and I wrote about it in one of Justice Thomas's curious views of race. And so this didn't surprise me that he would view this as a kind of Plessy-esque moment. Well, I just want to note that the ban on corporate spending, which is well over 100 years old, goes back to Teddy Roosevelt. It did not originate from... See, good clarification. This is why we should have fact checking in the amicus brief. It didn't originate from the Jim Crow South. It originated with Teddy Roosevelt really trust busting and trying to diminish the role of big money corporations in American life. And, you know, there's that classic line about Roosevelt from the people who backed his campaign saying, you know, we bought the SOB, but he didn't stay bought. And maybe just to go back to Plessy for a moment, I did think

that Malcolm Stewart for the federal government did a very effective job in saying, not only does this feel sort of symbolically and historically illiterate and bizarre to draw a parallel between Ted Cruz manufacturing this case and Homer Plessy seeking to board just the most convenient train car. But he sort of said, look, Plessy is trying to assert a legitimate right just to ride in any train car, not to be required to ride in a segregated train car. Ted Cruz is not assertive. This is an entirely self-inflicted wound on the part of Ted Cruz to just choose to give the donation and to refrain from being, or to make the loan and to refrain from being repaid. And so it's not even

remotely, even sort of setting aside the other sort of discordant nature of the analogy, it actually doesn't at all follow that what Cruz is doing here is even in the abstract legal sense, analogous to what Plessy did. And as I said earlier, not only did he create this problem for himself, but he did it poorly because he didn't actually use the money that would have been a problem under the statute. He used the pre-election funds that have always been perfectly legal. Which makes it even less forgivable that he failed to bring Snowflake with him to Cancun if he had paid back the loan. Anyways, Ted, what are you doing? Anyways, anything else that, you know, we should be thinking about or watching for with this case, Commissioner Weintraub?

Or future cases. Or future cases. Well, I think that, as I said, I think they should throw it out on standing. And I think part of the reason why some of justices like Justice Kagan were pushing on standing is because it's a much easier sell, I would think, for the other side than trying to actually get them to come to a conclusion that would not strike down a campaign finance law, which they kind of are inclined to do. That's kind of their predisposition, I think. So standing would be a good way of getting there.

The problem, of course, is that, OK, he did it badly this time, but somebody else will do it better the next time. And ultimately, if it doesn't get struck down here, then it will, another case like this will come along. And I think we are going to continue to see more. I mean, this is, this has happened ever since McCain-Feingold passed in 2002, that there has been a series of challenges trying to knock down one provision after another. And we're going to keep seeing that. And I think that there are plenty of folks out there who are interested in setting up these kinds of cases. We've seen it before. Fun fact, Citizens United did not actually create super PACs. That was a follow on decision by the D.C. Circuit called SpeechNow.org, which was, again, a setup case where somebody created a PAC and then, you know, they brought in prospective donors who said, oh, but I desperately want to give $5,500 to this PAC and the limit is $5,000. Do we remember those quaint days before super PACs when there was actually a limit on PAC donations of $5,000? That PAC, after the case went to the DC Circuit and they said, well, of course you can create a PAC that can collect all of this

money without that contribution limit, that PAC went out of business. They never actually supported any candidates. It was all just a setup. And we will see there's an industry out there, there's a cottage industry of people who are looking for ways to attack campaign finance laws, and we will continue to see that. And I think they will only be emboldened if there's an aggressive decision in this case. But in any event, I think they look at the composition of the court and think this is a good time to try and set up those kinds of cases. So I hope that my agency will continue to have something to do in the years to come, and we will continue to have law to enforce. We will keep our fingers crossed. We will be optimists, just like Justice Breyer. Absolutely. So thank you so much, Commissioner Weintraub,

for joining us. And thank you for giving us so much of your time. We greatly, greatly appreciate it. So much fun to be here. Keep posting those podcasts. We will. We will. Even if Ted Cruz tries to stop us, it's not going to work. It is your First Amendment right. It's true. I'm sure civil rights hero Ted Cruz will look into our defense. Okay. So we are running a bit long. And so we're actually going to save our recap of Concepcion for a very special episode. This is like a tenure gift to me. I get to record a special separate episode on a resentencing case.

Amazing. Everyone clap. Okay. Melissa. No, but tell me when you are, because that argument was, I'm not turning my camera off, but it's obviously I'm not a sentencing buff the way you are, but that was a fascinating argument. It was. So tell me when you schedule it, because I would totally join. I will. Okay. But we are going to go on to some end of the show court culture news and other discussions. So we got a slew of grants from the Supreme Court that we wanted to take note of. So where to start here? Well, let's start with the failed marshmallow experiment, shall we? We posited many podcast episodes ago that the sheer array of issues that appear before the court on their

cert docket and also appear on Leonard Leo's to-do list, there's a surprising amount of overlap. What is a six to three conservative supermajority to do while also trying valiantly to maintain the legitimacy of the institution? And so we suggested that maybe going slow would be useful in such a circumstance. And we offered as a kind of analogy, the marshmallow experiment, whereby you give like third graders the option of being in a room alone with a marshmallow and you tell them, you can either eat this marshmallow right now or you can wait for an hour and then you can have 150 marshmallows. And as you know, for a third grader, an hour might as well be an eon. It's a long time. And as the marshmallow

experiment suggests, it is very difficult for third graders to do that. Apparently, it also seems very difficult for the court to exercise that kind of restraint as well. Because in a term in which it took cert on a number of hot button issues, guns, abortion, and then still had affirmative action, the offing, they finally just decided to eat the marshmallow. And they granted cert in the Harvard and UNC affirmative action cases. So this is true. You only live once. Let's be legends. And I also think it's true

Sheree Whitfield of the Real Housewives of Atlanta energy, right? Who gone check us? Nobody. Nobody is going to check us. I mean, the court's looking around. It's not going to be the president. It's not going to be Congress. So they're like, we're just going to do it. We are going to burn it all down this term and next. All of it. And, you know, the UNC case hadn't even been decided by an appeals court. So that is just why. I mean, sometimes like they take a companion case, but like, they didn't, they don't even have a constitutional case. They just grabbed one because they're so eager. So that is true. They do not have a constitutional case. They just grabbed one because they're so eager. So that is true. They do not have a constitutional case. Well, they do now, but they didn't have one that was

really ready for review. But it is the case in Grutter that Gratz had not yet been decided by the Sixth Circuit, and they took them both up together. But those were both constitutional cases, so it made sense. So I'll give them, bundling makes sense, but you basically bundled in the constitutional issue that had not even been decided by an intermediate appellate school. It's a private school, but they needed a public university if they wanted to do it all. To just put it all down. presidential administration and it's like the first hundred days are like we were doing all of it right all the big policy agenda items we're going to take through that literally is how this court is behaving as though it is a newly elected administration trying to accomplish the most the fastest it's wild yeah um and the decision to take the case um now and when the court did called to my mind like two other kind of like noted historical moments.

One was part of Justice O'Connor's reasoning for the Supreme Court in Grutter versus Bollinger when she upheld the University of Michigan Law School's admissions policy, which considered race as part of a holistic analysis of an individual's application. But she suggested that universities would not forever be able to consider race when making admissions decisions. Or they wouldn't need to. Right. They wouldn't need to. So let's play her explaining the decision and actually announcing the opinion when she suggested as much here. Accordingly, race-conscious admissions policies must be limited in time. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental uses of race must have

a logical endpoint. We take the law school at its word that it would like nothing better than to find a race neutral admissions formula and will terminate its race conscious admissions program as soon as practicable. It has been 25 years since Justice Powell first suggested approval of the use of race to further an interest in student body diversity in the context of higher education. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interests that we approve today. Should we note that she recanted that later to her biographer of Antanas? Yes. So Justice O'Connor recanted that statement, basically saying like, okay, that prediction was wildly-

We were wrong. Naive. Yeah, exactly. But it remains in the court's opinion. And the court decided to take the affirmative action cases on the 29 California versus Bakke, in which he explained why schools can and must be able to take race into account in order to address the history and legacy

of racial discrimination in this country. And so we wanted to play some clips from his partial concurrence, partial dissent in that case here. For it must be remembered that during most of the past 200 years, the Constitution as interpreted by this court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when the state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.

Despite the passage of the 13th, 14th, and 15th Amendments, the Negro was systematically denied the rights that those amendments were supposed to secure. The combined actions and inactions of the state and federal governments maintained Negroes in a position of legal inferiority for another century after the Civil War. The southern states took the first steps. Immediately following the end of the Civil War, many of the provisional legislatures passed black codes similar to the slave codes, which among other things limited the right of the Negroes to own or rent property and permitted imprisonment for breach of employment contracts. Congress responded to these legal disabilities by enacting the Reconstruction Acts and the Civil Rights Acts.

Thus, for a time back there, it seemed as if the Negro might be protected from the continued denial of his civil rights and might be relieved of the disability that prevented him from taking his rightful place as a free and and with the assistance of this Court, the Negro was rapidly stripped of his new civil rights. The Court began by interpreting the Civil Law amendments in a manner that sharply curtailed their substantive protections. Then, in the notorious civil rights cases, the Court strangled Congress's efforts to use its power to promote racial equality. The Court's ultimate blow to the Civil War amendments

and to the equality of Negroes was, of course, Plessy against Ferguson. At every point from birth to death, the impact of the past is related to the still disfavored position of the Negro. In light of the sorry history of discrimination and the devastating impact on the lives of our Negroes, bringing the Negroes into the mainstream of American life, should be a state interest of the highest order. To fail to do so is to ensure that America will remain a divided society. I do not believe that the 14th Amendment requires us to accept that fate. Neither its history nor our past cases lend support to the conclusion that a university may not remedy the cumulative effects of society's discrimination by giving consideration to race

in an effort to increase the number and percentage of Negro doctors in this country. But it's not just destroying affirmative action that this court is ready to do. It's a list, Leah. There's a list. It's a long list. It's a long, long list. And they also granted several major cases on regulation that I think are going to be quite significant. One is Sackett versus EPA. That case is about a seemingly technical question. What are the, quote, waters of the United States that are protected by the Clean Water Act and can be regulated by the Environmental Protection Agency. This question, again, will have major implications for the scope of the EPA and the Clean Water Act's

authority to address pollution and issues of environmental justice. The court also granted another case, Axan Enterprise v. FTC, which is about basically parties' ability to raise constitutional challenges to agencies, here the FTC. And the last two cases, Sackett and Axson, are both supported by a bevy of regular amici supporting deregulation, so the Chamber of Commerce, Cato. One is litigated by the Pacific Legal Foundation, who supported the other as an amicus. So both huge deregulatory cases, challenges to the administrative state that are also very much a part of the Republican court's agenda. And not to be outdone by that, you're not just

going to dismantle the administrative state. You're not just going to dismantle affirmative action. You're going to have big overruling energy, but not just yet, not quite. You're going to maybe delay for a little bit and save that marshmallow for later, but still make some very big moves in Indian country. So last Friday, as we were recording our last show, it came over the transom that the court had granted cert in Oklahoma versus Castro Huerta. That decision will implicate the court's five to four decision two terms ago in McGirt versus Oklahoma. Mercifully, although the challengers had asked the court to overrule McGirt, the court did not take cert on that. So they have left that marshmallow for now.

But I think you have to assume that taking this case is a signal that they are very interested in going back and reconsidering what they apparently tried to settle in McGirt. And I don't know, I think that's interesting because that may be another place where the conservative bloc is a little misaligned in terms of what they're doing, because that was a Gorsuch opinion. And I think there what the court is going to do is it's going to undermine the significance of the decision, because what they're going to address is whether states have the authority to prosecute cases in which not the defendant but the victim is a member of a Native tribe. And there were statements in McGirt as well as previous cases that states had no such authority and that authority was vested in the federal government. And if all of a sudden, you know, the court vastly expands

the scope of state's authority over those cases, it will be undermining kind of the power and authority of tribes. Okay, and one more thing we wanted to mention from this week. So late Thursday, the court reinstated the execution of Alabama death row inmate Matthew Reeves. So Reeves wished to be executed using nitrogen hypoxia rather than lethal injection. And following a hearing and the development of a record, a district court found that because of Reeves' intellectual disabilities, which were quite serious, he likely did not understand the form that he had been asked to fill out selecting a method of execution. So the district court found that the execution should be stayed. The 11th Circuit unanimously

agreed. And yet late Thursday, five justices on the court reversed those lower court findings and granted Alabama's request to would have denied the state's request, but did not join the Kagan opinion. And I mean, once upon a time, there was such a thing as like a courtesy fifth in a death penalty case. So if four justices wish to stay in execution, a fifth justice would, as a matter of courtesy, add a vote. So the execution would be stayed. Here, no one was even asking to stay in execution.

The execution had already been stayed. This was a request by the state to reinstate an execution. And, you know, a fifth vote wouldn't peel off to join the four dissenters to at least allow a several week delay so that this individual could just make an informed decision about the method by which the state would put him to death. There wasn't even any request for that not to happen. It was just a question of how, not whether. I mean, I feel like I was pretty shocked by this, and I think we should maybe be beyond shocked with this court, but I was. I learned Thursday night that I wasn't. I found this really, really shocking. I mean, it is another example of the zeal with which this court is willing to undo stays of execution because they're so wrapped up in this idea that there is a guerrilla war against the death penalty that they think it is their job to basically strike back and undo any of these days of executions and allow states just to push forward with executions, even where there are

serious constitutional questions about whether those executions are lawful. This is not the first time the court has disturbed a stay, basically overturning a court's decision to prevent an execution and offering no such explanation, and then just hurrying forward. So we are running long, but we did want to offer the podcast news and update before we close out. And that is that strict scrutiny, all of us and Melody are... And in the future, Steve Breyer. And future host Steve Breyer are joining the Crooked Media Network. We are very excited about this development, which will allow us to continue offering the podcast and having Melody produce the podcast

and bringing you episodes as, you know, the court is doing so many things that are so important and so impactful to so many people's lives. And we are just really thrilled about this opportunity to be able to continue to follow the developments of the court and try to inform more people about them. And that includes developments in Sam Alito's skincare regimen, which we will continue to cover as well. One very important aspect of the announcement that

Leah just made was, so our operation is moving under the umbrella of the Crooked family. There are a bunch of great podcasts already there. We are joining that family. So that means there will be some changes, nothing substantive, but one change you all might care about is that our merch line is going to be discontinued because we're going to have new merch in the Crooked store. And that's sort of to be determined exactly what it will look like. But you've got about a month to buy whatever of our current merch you want.

So stock up, get your early holiday gifts. We've got a lot of it out there. The website has a ton of amazing mugs, shirts, hats, dog bandanas, baby onesies. What else? Christmas masks. Yeah. That might be it. Anyway, lots of lines, lots of themes,

some classics, some, you know, responses to particular developments, but get all the gear you want in the next month. And after that, you'll have new gear opportunities, but the old ones will be gone. Thank you to Commissioner Weintraub for joining us. Thank you to Dean Risa, as well as Tejas for joining us. Thank you to Melody Rowell, our producer. Thank you to Dean, Risa, as well as Tejas for joining us. Thank you to Melody Rowell, our producer. Thank you to Eddie Cooper for making our music. And we wanted to wish a happy birthday to one of our superfan listeners, Abigail Roston, a senior at Northwestern in legal studies. So thank you.