Strict Scrutiny - Moot and Rally

Episode Date: December 2, 2019

Leah and Kate discuss a case that isn’t even a real case involving a real law, as well as the very real and very important Affordable Care Act case on the Court’s December calendar. They also recap some Federalist Society Gala happenings and developments in the cases involving subpoenas for the President’s financial records. 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. Hey, everyone. Welcome to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're two of your hosts. I'm Kate Shaw. And I'm Leah Littman.

Hey, Leah. We haven't done a show, just the two of us, in a while. I know. We're kind of mixing up the lineup this time around. I know. I think we'll mix it up more next semester. Melissa and I have really aligned scheduling-wise, and I think you and Jamie have, too. Yeah. It's kind of the work-wife thing that you all have going on there. You guys do. Okay, so we've got a great show lined up for you today. We're going to start with some breaking news, then we're going to preview a few of the cases we'll be watching during the court's December sitting, which starts on Monday, December 2nd, and we'll end with some court culture. Okay, first, let's do the breaking news.

I think the natural place to start is the president's financial records. President's financial records. Okay, so we've got a couple of cases maybe making their way to the Supreme Court, maybe not, right? So there are two cases, one out of New York, and that's a case brought by Manhattan DA Cy Vance. Not against the president, nope, against an accounting firm, right, Mazars, but that seeks, in addition to other things, the president's tax returns. And another case, basically the same request to Mazars, but this one brought by a congressional committee.

So that one was brought in D.C. The president's personal lawyers, joined by the Department of Justice, are arguing that sort of based on different theories in the two cases, neither the Manhattan D.A. nor this congressional committee has any right to access the president's personal records. And those arguments have fallen very flat in the lower courts so far. And right now they're pending before the Supreme Court. So the parties in the New York case have agreed to stay enforcement of the subpoena that was issued by a Manhattan grand jury pending the Supreme Court's resolution of the cert petition. And on Friday, the Supreme Court stayed the D.C. Circuit opinion ruling against Trump and in favor of the congressional committee.

So right now, both of those orders to produce the president's financial records are on hold while the Supreme Court considers whether to take up one or both of these cases. Yes, and I think it's important to note that even though the court stayed the D.C. Circuit case involving the congressional subpoena, it also set it for expedited briefing requiring the president to file the petition for certiorari on December 5th, which, and given the further expedited briefing schedule, would allow the court to consider the case on its December 13th conference day together with the New York subpoena case. So it could decide that day, or we might know Monday after the 13th conference, whether the court is going to grant those cases. So what do you think about the court's likelihood of taking up one or both of those cases? I think that on its own, the New York case is obviously not cert worthy.

The president's argument is just so overbroad. And also, I think, like rather apparently foreclosed by United States versus Nixon, which said, you know, you can have a federal grand jury issue a subpoena for information. They're involving the president's performance of his official duties here. This doesn for information there involving the president's performance of his official duties. Here this doesn't involve any of the president's performance of his official duties. It doesn't involve anything possibly subject to executive privilege. It's directed to a third party who is willing to comply with the subpoena, Mazars. And the Department of Justice, even though it's nominally supporting the president's

attempt to kind of hold back the subpoena isn't endorsing the president's personal lawyer's super broad argument that the president can't possibly be investigated for any criminal conduct while in office so i just don't think that case is cert worthy um the dc circuit case i think the merits of the president's argument and the administration's argument there are equally specious in that they are arguing that Congress can't possibly investigate any of the president's conflicts or compliance with the law outside of a formal impeachment hearing, which just seems absolutely bonkers to me. However, I think that that argument will be of more interest to the justices and potentially interesting enough that there would be four votes in favor of cert.

And if they grant that case, then I guess I see them also potentially based on my deep distrust about the current court's attitudes toward ensuring the executive branch's compliance with the D.C. Circuit opinion, I think you're right that the court might be more interested in this kind of big separation of powers question that the case tees up that isn't present in the New York case. And that case also features a dissent from the panel opinion by Judge Rao, who's a Trump appointee, and then two other dissenting judges from the OnBank refusal to reconsider. And so in the New York case, you know, it's a unanimous panel. Now, there was a decision to forego a request for on-bank review. So I guess in theory, there could have been a dissent drawn. But that Katzman majority opinion is so airtight and sort of frames so narrowly this question. This is a grand jury subpoena. The president has to do absolutely nothing that would distract him from his official duties to participate in it. It's just this sort of free floating.

It's like inconsistent with the dignity or something of the office. They don't say those words. But in some ways that has to be what they're arguing because, as you said, there's no conceivable executive privilege argument or anything even in the neighborhood. And so, you know, they impugn the motives of the Manhattan DA and of the congressional committee in the D.C. Circuit case. But in particular, the New York case, I totally agree, does not feel traditionally cert-worthy in any way. D.C. Circuit opinion more so. And I share your instinct that it feels like they might take them up together, although they raise distinct issues. And I worry that in the same way, I think we both thought that the Title VII argument was somewhat muddled by having taken up these two related but quite distinct questions. I feel like that could happen here.

The other thing that is so weird about the D.C. Circuit opinion is that it is predicated on a state of the world that no longer exists, right? And actually so is the original subpoena. So the subpoena is issued far before the current impeachment proceedings are underway. And the Judge Rao dissent is all about how there is a constitutional mechanism for investigating presidential misconduct. And that mechanism is impeachment. And that is not what the subpoena is in furtherance of. And that's true about the historical subpoena that was issued. But it just seems like it makes it a really messy vehicle because they will be talking about a state of the world that no longer describes the state of the world. And so for that reason, too— Well, we will see whether the court has any appetite for deciding those cases after listening to the December arguments, I think.

So maybe that will give us a clue about their appetite for the D.C. Circuit case. Right, right. But I do think the timing of the briefing schedule for the D.C. Circuit case does suggest they are at least going to talk about them together. And, you know, maybe they'll stand or fall together. I will say if they take the cases up, it still feels to me like, you know, every principle legal argument points in the direction of the president losing here. So just because they take the cases up does not mean that the president ultimately prevails. You look a little bit pessimistic across the sky. No, I hope you're right.

And I want to think you're right. I think that my ability to feel confident in that prediction might just depend on how some arguments in these cases we're about to discuss go. Yeah. Okay. Sounds good. All right. Before we get to the December sitting though, let's talk about another piece of very recent breaking news, which is the opinion issued just last night, right, from when recording, which is on Tuesday. So that is D.C. District Court Judge Katonji Brown Jackson's massive and scathing rejection of another kind of maximalist set of legal arguments made by the Trump administration. And that is that close advisors to the president enjoy absolute testimonial

immunity. Right? So this is a case involving a request for testimony from Don McGahn, not just a request, a subpoena, right? And as Judge Jackson's opinion makes clear, a subpoena isn't just a request, right? A subpoena is a legally binding command, right? And even if you're the president's close personal advisor, you are required to show up in response to a subpoena. And you can fight with congressional investigators about whether particular subjects are covered by executive privilege. But there's no basis in law for a simple refusal to comply with a congressional subpoena the way the White House has advised McGahn and, hey, a bunch of other presidential advisors to do in this case.

Yeah. And there's already been a notice of appeal filed from this decision. But on the wake of the decision, Congress issued other subpoenas to both Attorney General Bill Barr and Secretary of Commerce Wilbur Ross, I think partially related to my favoriteton – yeah, to Bolton and Mick Mulvaney and Bolton's former deputy, Charles Copperman. Some – Copperman at least already has this case pending in the District of Columbia. And I think there's still a hearing set for that case in the second week of December. So yeah, obviously the DOJ made very clear first thing this morning that the Judge Jackson opinion is not going to be the final word. But it has some incredibly strong language about, you know, the kind of these core constitutional principles that subject the president to the rule of law, right? The president is not a king, is not a monarch. My favorite line, I don't know if you have a favorite line in the opinion, but my favorite line is a short one, which is, per the Constitution,

no one is above the law, which is just like so, per my last email, like in case you missed it. Exactly. It's just dripping with, are you kidding me with this? I am extremely here for this Judge Katandre Brown Jackson opinion. And it's just all dripping with Judge Katandji Brown Jackson opinion. And it's just all dripping with Judge Katandji Brown Jackson is extremely not impressed with this argument. And she brought an impressive opinion. So we will see. But obviously, again, not the last word. No. So on to the December sitting. Okay. Sounds good. So the first case that we wanted to discuss is formally called New York Pistol and Rifle Association versus New York City.

But Kate, you just told me that it has a shorter acronym that it's apparently known by. Maybe not everyone calls it this, but I was at a conference at Duke a few weeks ago, and everyone referred to it as NYSERPA, which is a little easier to say than New York State Rifle and Pistol Association. So we could say NYSERPA. It sounds like a vicious serpent or some kind of disease, though. New York gun case? You want to just do New York gun case? Yeah, New York gun case. So this case requires some amount of background because when the court granted certiorari in the case, it involved a challenge to a New York City regulation that has since been amended.

But even before that, I think it's probably worth getting into the history of the court's Second Amendment jurisprudence a little bit. So in 2008, the Supreme Court held for the first time that the Second Amendment protects an individual right to gun ownership independent of militia service. And that case involved a D.C. handgun ban, which the court invalidated. But then the court incorporated that right against the states in a 2010 case, McDonald v. City of Chicago. Since then, the Supreme Court has not taken up a Second Amendment case. This is its first one since those two major rulings. And some of the justices, and most particularly Justice Thomas, have expressed considerable displeasure at how the lower courts, in their view, have watered down the substance of the Second Amendment right that the court recognized in those 2008 and 2010 cases. And that brings us to the New York gun case or NYSERPA.

So it's this really, it is, it was, there's going to be some weird tense shifting in our discussion because the case that we are describing involves a law that no longer exists, right? And that is one of the critical both questions and oddities at the heart of the case. But the law that did exist was really a New York, an NYPD regulation that was in effect, again, until a few months ago. And so under that regime, New York gun owners who had what's called a premise license in New York City, and that's distinct from a carry license, but a license that lets you keep a gun at home, had to keep their guns on the premises with just a few narrow exceptions. And those were going to gunsmiths to get, I guess, your gun cleaned or repaired

and approved firing ranges. So there were eight in the city limits, and you were allowed to carry your gun to those gun ranges for target practice and training and things like that. But that was it. Your premise license otherwise restricted you to having your gun on the premises. So some handgun owners who had these licenses in New York challenged the law under a variety of theories, the Second Amendment, the Dormant Commerce Clause, the constitutional right to travel.

The city won in the federal district court and in the Second Circuit. But after the court granted cert, New York, both the NYPD changed its regulation. So rescinded the regulation. So it was no longer unlawful to carry your gun outside of your home apart from to these eight, you know, approved firing ranges. And then in July of 2019, the state passed a law that guaranteed these premise license holders the right to carry their gun to other lawful places. So second homes and other firing ranges and firing ranges outside of the city or the state, which were the places that these plaintiffs had indicated they wanted to carry their guns to. So that's what the state of the New York law is now that the challenged provision of the NYPD regulation that constrained them in their ability to move freely or at least move to some specific places with their guns is no longer law, right? So the court had already granted the case. And at that point,

the city tried to convince the court that the case was moot because the challenge regulation no longer existed. But the court refused to dismiss the case, has decided it wants to hear arguments. So there are two big dimensions to the case that will be argued in December, mootness, right? So that remains a really big issue in the case, will be argued in December. Mootness, right? So that remains a really big issue in the case. And then merits. Okay. So what are the arguments on mootness at this point, Leah? Sure. So I think that on mootness, it's helpful to clarify what the plaintiffs in this case were asking for. So when the plaintiffs filed their complaint challenging this regulation, they sought what's called injunctive relief, i.e. an injunction prohibiting

the city from enforcing the then regulation against them, as well as the declaration that it's invalid. They did not seek what's called backward-looking relief or damages from any existence of the law and how that law might have harmed them in the past. So the argument for why this case is moot is the city and state have already given the plaintiffs everything they asked for. That is, they've given them the permission to take their handguns where in their complaint they said they wanted to. And the city and state have repealed the law that the plaintiffs wanted and joined. And so that's their argument for mootness, right? Like this is entirely a hypothetical case challenging a law that no longer exists.

There's just nothing for the court to give the plaintiffs and nothing for the court to decide. The plaintiff's arguments and the federal government, which weighed in on the plaintiff's behalf, have a variety of different arguments for why this case isn't moot. I think some of them can be boiled down to a kind of Kaiser Soze-ish thing along the lines of like the greatest trick the devil ever damages based on the law that used to exist, even though they haven't yet done so.

The plaintiffs, for their part, seem to argue that a city or state can never moot a case once it has been granted by repealing a statute if they are purposefully trying to get the case out of the Supreme Court is kind of how I understand their arguments. And so that's kind of the state of play in between the parties. So you have both the plaintiffs who are these individual New York residents and an association. And then as you alluded to, Leah, the federal government has come in, but they came in like sort of slowly. They initially said, well, we haven't decided what our view on mootness is. And then when kind of pressed, they filed a letter brief saying, right, on this sort of weird theory that these plaintiffs could amend their complaint at some point, they weren't foreclosed from doing that and ask for damages. Then, you know, that kept

this issue alive. And we should say, in case we haven't, that, you know, this idea that there needs to be a live controversy, right, between an active dispute between two parties is a pretty kind of core constitutional precept, right? So courts in our system don't sit to kind of answer abstract legal queries, but to resolve adversity, right? So concrete disputes between parties. And what New York is arguing here is there just isn't that, right? And what this kind of boils down to is the plaintiffs in this case really want the Supreme Court to offer some general guidance about laws of this sort. And that's not a permissible ask of the Supreme Court in our system, right? General guidance about laws isn't what the court sits to

give. It sits to resolve disputes between parties and New York says we just don't have that here. And to your description, I think Leah was exactly right that there's – so the plaintiffs basically say that the city engaged in these extraordinary machinations to evade Supreme Court review and that that's – New York says that's kind of a ridiculous argument. What we did was we passed a law, right? Like states and cities passed laws, changed laws all the time. The fact that there was looming Supreme Court review like is a true fact in the world, but is entirely irrelevant. Yeah. And like that's the way that cities and states provide relief for unconstitutional conduct, at least when the unconstitutional conduct arises from laws, like they pass a law and repeal the prior one.

And the idea that that doesn't suffice to moot a case whenever it's pending before the Supreme Court is just belied by all of the cases in which the Supreme Court has found moot instances where cities or states or the federal government even changed laws while the litigation was pending. You know, there's instances of like federal firearms statutes

being repealed or state statutes being amended. And that obviates the need for the Supreme Court to hear a case. And at least in our constitutional system, like judicial review of, you know, the political process is supposed to be a last resort. And like when the political process gives you what you want, there's not a big reason to keep the litigation going, again, about a hypothetical law that no longer exists. Yeah. Yeah. So it is this very weird kind of juricentric, right, really like excessively court-centered vision that says only the court can remediate this constitutional violation, right? They've argued there's a constitutional violation, and the violation that they've identified, if there was one at all, has been remedied just by a different

actor in our system. So anyway, that I think and maybe is clear from this conversation is really where the action is in this case. Like should the court be hearing this at all? It seems I think we're both pretty sympathetic to the argument that the answer is obviously no. And yet the court can't feel quite the same way we do because they should have dismissed the case as moot if they did. And yet I am confident. And again, this is the theme maybe that like I am far more optimistic about this stuff than you are, Leah. But it feels to me like maybe I'm going to be sort of pushed into kind of perpetual pessimism if this goes differently. But once they hear arguments, they have to conclude that this case is moot.

Yeah. So like this is one of the cases that I was flagging as, I want to see how the arguments go before I come to any confident predictions about the Supreme Court rejecting these utterly meritless arguments as far as defenses against these congressional subpoenas and whatnot, just because the mootness argument

is so powerful here. And there was an amicus brief filed by some federal court scholars that you flagged Jessica Bowman-Posen and Adam Samaha at Columbia and NYU. And they have this amazing line in the amicus brief saying, this isn't a moot court. This court doesn't exist to hear moot cases. And I thought that was exceptionally clever. Yes. And it's a very substantively very good brief as well. And yet, because the court has basically said to these parties, you know, we're hearing this case.

And there's like sort of tone to the New York brief, I thought. I don't know if you thought this, Leah. That is a little bit like, okay, really? Like you're going to make us argue in defense of the constitutionality of a non-law? Like, okay, it sort of seems like that's what you want us to do. So we're going to do it. Like, it's good for you to get, you know, adverse presentation of these hard questions. But just to be clear, we don't have any desire to revert back to this former regulatory scheme. State law prohibits it anyway. So this is an

argument sort of made for your benefit and not in defense of an actual law we have or envision ever having. So there is this kind of odd kabuki theater quality to it. I mean, it's a very good brief. It's really good. Lawyers on it. But they are being asked to do a preposterous thing, which is to defend a law that doesn't exist.

Right, exactly. They repeatedly refer to it as the former rule or like the former law. And you can look at it this way. Like if this case was filed now, right. And like the plaintiffs were seeking a determination about like whether a city or state could enact this law, like no one would think that the court could hear it. No. Right. And so like the court can't hear it now. Like the city and state have repealed the law. It's just, it's extremely frustrating because the court order in which they said,

we're going to set this case for argument and, you know, the party should be prepared to discuss mootness had this tenor to me of like, let's just do it and be legends. And, you know, I just don't know which way it's going to go. I think you're right. The sort of how much kind of facts and law constrain the Supreme court, like right in this moment, will be given, like will be revealed, not completely, but like at least in part

during the oral argument in this case. And so, and so you're right, it's an important one beyond just like this quirky little New York law. Nobody else really had a law like it. Nobody has a law like it now. And yet you're right, it could send some important signals about sort of how, whether we live in a reality based world or Supreme Court. So let's hypothetically say that the court decides to moot and rally in this case. What might it do on the merits, Kate, about this hypothetical law that no longer exists? I am so annoyed that we even have to have this conversation. Exactly.

But, you know, so let's do it briefly and like register our resistance to the whole exercise. I'm down for it. But it is like, yeah, I mean, the New York is saying there's a, you know, and it is right that the Supreme Court hasn't given guidance in, you know, over a decade as to how these and really maybe ever because in Heller, the court says on any standard this DC law falls. But so lower courts have just been kind of working it out as they do in our system. And most courts have sort of coalesced around this kind of two-part analysis.

So in the first part, you're looking at a regulation of guns and you're supposed to look to text and history and tradition to determine whether the conduct that's being regulated is within the scope of the Second Amendment. And then at the second step, you consider the government's proffered justification. Is it a strong enough justification that it warrants the kind of regulation that burdens the Second Amendment right that is you have identified in the first step of the analysis. That anyway is how New York, I think, accurately describes what most lower courts have done with evaluating restrictions that are alleged to violate the Second Amendment. And of course, the gun owners, the plaintiffs in the case sort of disagree about whether any kind of means ends test is even required in evaluating Second Amendment cases. But say in any event, these laws should be

subject to strict scrutiny. The New York position is that intermediate scrutiny is sufficient. New York says this is a kind of a time-place manner restriction. And if we're talking about the First Amendment, we would be in intermediate scrutiny land. And that is basically where we are now. So the two parties fight about, you know, how consistent with previous regulations this New York law is. You know, New York says, look, it's always been the case. And they cite, you know, 1790s Massachusetts ordinances that sort of say, you know, you can do your target practice here but not there. And so kind of regulations regarding when and how you can practice using your weapon are as old as the country says New York. And these plaintiffs say, no, this is far more restrictive than anything we've tolerated before.

And, you know, because Heller seems to sort of require all federal judges and law clerks are going to become armchair historians, I guess that's the way this is all going to be fought out. But in any event, I just don't think there are any answers that could or should be forthcoming about those questions in this case. Yeah, like, again, this is a great cocktail party conversation, but like maybe not a proper subject of the merits opinion from the Supreme Court. One thing that did really strike me about the plaintiff's argument in the cases is that they are really focused on the fact that laws can burden fundamental rights or constitutional rights short of enacting like

outright prohibitions. And a lot of the arguments that they were making to me sounded in the register of the kind of arguments that plaintiffs in abortion cases, you know, often try to get courts to recognize, which is like, you put up all of these obstacles, right, and create, let's say, like a limited supply, and like, that's going to burden access to this right. So in particular, the gun owners say, look, forcing the eight and a half million New York residents to all use these seven or eight firearm ranges creates a kind of glut on the firearm ranges. And again, this is a very similar argument that you see in other constitutional rights. And if you are sympathetic with that argument, like I would hope that it like carries over like across different contexts. But, you know, I also agree like this is just like a completely interesting but irrelevant conversation that like just isn't going to get kind of resolved or a thousand cuts that abortion proponents identify states as having engaged in in the context of the regulation of abortion

and that gun owners suggest states and localities are engaging in. I'm far less sympathetic to the sort of factual premise of the latter argument. But that that at least is the suggestion and that there are constitutional limits as to both. And that at least, that last piece of it, I think that if you take Heller as settled law, I would grant. Absolutely. And I obviously think there are limits to the degree to which you can regulate abortion out of existence as to the former piece of it. But I do think there are sort of interesting parallels and I'm glad you identified them. Yeah.

You know, there are two other – there's a dormant commerce clause argument and a right to travel argument in this case. Do we just sort of say – I mean – Like the dormant commerce clause argument should stay dormant because, again, this case isn't real. Done. Done. Okay, good. Please. I mean we are so happy to have these arguments about how the court should scrutinize real laws.

And so I look forward to doing that in some future case, because of course, there will be like, this is so weird, the court felt the need to make everyone go through the motions in this case, there will be other candidates for review now that you have a pretty strong conservative majority on the court that seems quite interested in giving additional guidance and guidance that is more Second Amendment protective or gun protective, I presume, than the lower courts have been issuing. But they are just raring to get there, apparently. I know. So I guess two other small things that we wanted to flag about this case. One was an interesting set, or I guess not a set of, an amicus brief and then a letter that was filed in response to the amicus brief on behalf of two different senatorial camps. So you had an amicus brief filed by Senators Whitehouse, Hirono, Blumenthal, Durbin, and

Gillibrand, arguing that the Supreme Court shouldn't hear this case because it's moot and basically suggesting that the host of what people call dark money, like unidentified donor money that has flowed in in support of judicial confirmations of the most recent justices has basically undermined the public confidence in the Supreme Court as a neutral arbiter. And that if the court reaches out to decide this case that is like clearly moot, it would undermine public confidence in the court further. And, you know, the court shouldn't tax this political capital by doing so and in response to that amicus brief you get a letter signed by i think every republican senator in the senate saying that they viewed this amicus brief as wholly inappropriate because it was threatening court packing and other you know quote radical legislative reform um and you know about how it

was an assault on the independent judiciary. You know, it was hard, frankly, for me to read this letter with a straight face for a few reasons. But that was just, I think, something notable to point out about the case as well. Yeah, it was, you know, people referred to the White House brief. I don't think the McConnell letter does, but people did as like, not a friend of the court brief, but kind of an enemy of the court brief. Like it was very, it was very confrontational with the court as an institution in kind of an interesting way. And I think there was a view that, you know, an op-ed or another kind of format might have been more appropriate than an amicus brief, but there's nothing to stop Senator. I mean,

whether it's counterproductive or not, and I think there was some thinking that it might be, you know, they certainly have every right to express these views in an amicus brief if they want, but it was certainly an atypical one. And so I think it is worth noting. I have flagged before the amicus brief on New York side by the March for Our Lives group, which I thought was a great brief. The other thing I wanted to flag was that there is this, you know, we sometimes note kind of asymmetry, and I don't think the justices or their law clerks go about counting

briefs in these cases by any stretch. But there are significantly more briefs on the part on the side of the plaintiffs and not on the side of New York in this case. And this is that's not that surprising, right? This is an area in which there has been a degree of kind of asymmetry in organizing and mobilization. And you just have a lot of groups that have filed on the side of these challengers to this New York gun law. And I do think that's, you know, the March for Our Lives is, you know, it's a new organization and that is an indication that there may be some shifting happening and sort of new organizations and new kind of sort of popular sort of development and mobilization is happening on

the sort of pro-gun regulation side of this debate. But it has been a fairly asymmetrical debate for some time. And I think that I, for one, welcome sort of the cropping up of new organizations that write that balance to some degree. Yeah, it's interesting, like I, because the asymmetry between the two sides was also to me reflected in the amicus brief and the letter response that we saw. You know, I noted that the letter response from the Republican senators was signed by every single Republican senator, whereas you have this amicus brief signed by five of them. And, you know, the Republican letter brief ends with, you know, while we remain members of the body, the Democrats threat to restructure the court is an empty one.

Like nine seems to be a good number and will remain that way as long as we are here. You know, these are, of course, the same senators that like held open the Supreme Court seat when President Obama nominated Merrick Garland to fill it. And like they were content with an eight member court. And like some of them, individuals who signed this letter said they were fine with it permanently being an eight member court if Hillary Clinton ever became President Hillary Clinton. And so it was just like an odd other aspect of the asymmetry between the two parties. Although I guess on this issue, it's just like the judiciary rather than just the Second Amendment. Yeah. But it's not an accident that it arises in this case.

So, OK. So obviously we will revisit after oral argument and sort of see where our kind of initial assessments fall. OK. So one other case that we wanted to flag from the December sitting is a case called Maine Community Health Options involving the ACA risk corridor. So this is going to be argued in the second week of the December sitting, so on December 10th. And the background here is this case is super complicated. I am going to simplify it. But briefly, so the Affordable Care Act or the ACA gets passed in 2010. And it does a lot of things. But among others, it prohibits

health insurance companies from discriminating against people with pre-existing conditions, either by denying them coverage or by writing them policies that are more expensive. And this meant that insurance companies were going to be taking on a lot of new risk because there would be people with that kinds of health conditions that they would ordinarily either not be able to purchase health insurance, right? That's part of the problem. Or insurance companies would charge them extremely high premiums. So because this was an important part of the entire scheme of the ACA, the Congress that enacted the law created what it called a temporary risk corridor program, which was basically, again, at least according to these health insurance companies, but was basically a guarantee

by the federal government that it would bear the risk that these insurance companies would incur big losses for the first three years of the program. And initially, these companies did lose a lot more than they made to the tune of something like $12 billion, according to their filings. And several years later, and again, this is simplifying because a bunch of things happened in the interim

inside HHS, the Department of Health and Human Services. But several years later, Congress passes a set of appropriations riders that prevent the government from actually making these promised payments. But they never amended the underlying statute that made the commitment. So these insurance companies have sued, a divided federal circuit held that these appropriations riders did repeal the statutory guarantee from 2010. And the Federal Circuit largely relies in doing so on some legislative history that indicates that some House members are well aware of what they're doing here. So it's a largely legislative history reliant decision to essentially privilege these appropriations riders over this original 2010 statutory provision. So big gun, Paul Clement

has convinced the court, and we should have said, I guess, that Clement is representing the plaintiffs in the New York gun case as well. So he's going to have a busy December. But so he has convinced the court to take the case. And he argues, and his briefs are always, you know, excellent, and this one is no exception. So the government, he writes, cannot be allowed to promise boldly inducing massive reliance by private parties that directly benefits the government and then renege obscurely via implications drawn from legislative history and GAO correspondence. OK. So there's just this big, really interesting statutory interpretation question at the heart of this case. And there's a principle in statutory interpretation that repeals by implication are disfavored. OK. So you have a statute and implicitly repeals the earlier statute. If Congress wants to repeal a statute, you know, it's best for it to just outright repeal that statute.

But short of that, it has to be crystal clear in the later statute that it is repealing the earlier statute. So that is a strong principle in statutory interpretation. And there is an even stronger version of that when it comes to appropriations bills. So you're really not supposed to be able to sneak through the appropriations process substantive changes to existing laws and let alone like a big repeal of a provision of an earlier important statute like the Affordable Care Act. So that's basically the argument that these insurance companies are making. We got this guarantee. You can't take away this statutory entitlement by passing an appropriations bill years later.

It's not going to be subject to the same kind of debate. Members may not even realize what's happening. And, you know, either way, this is sort of a core principle of statutory interpretation. You haven't overcome kind of this presumption. Yeah, and so the appropriations rider that you've been referencing that the Federal Circuit held ultimately, you know, amended the statutory entitlement to the risk order payments, it's called the Rubio rider because it was introduced by Marco Rubio, who, you know,

use this introduction of the appropriations rider to claim that he quote killed Obamacare. And I think it might be worth just reading the text of this appropriations rider, because I think if you look at the text, you know, it becomes clear perhaps how the cannon against implied repeals might be implicated. So the appropriations writer says none of the funds made available by this act from the Federal Hospital Insurance Trust Fund or the Federal Supplemental Medical Insurance Trust Fund or transferred from other accounts funded by this act of the Centers for Medicare and Medicaid Services

may be used for payments relating to risk corridors. And the argument is like, look, that's results in a failure to appropriate the sufficient funds, you know, to authorize the executive to pay its obligation that doesn't remove its obligation to pay out the money, you know, once Congress authorizes it to do so. And the Federal Circuit, as you were suggesting, relied on some legislative history to conclude that it did. And specifically, the House Appropriations Chairman said, you know, this will mean that HHS will never pay out more than it collects. But the fact is, Congress actually tried to pass a version of that statute, but it failed because they didn't have the votes to pass the substantive amendment to the Affordable Care Act. And so what they did instead is this appropriations rider, which just temporarily delayed its ability to pay out. But that also had the effect of causing some insurers to withdraw from the ACA because they didn't know when they were going to be paid back and they were experiencing these large losses

in the interim. I think that like the statutory interpretations arguments in this case are super wonky, but I actually think they might be a pretty good window into how the court might be receptive to the other statutory interpretation arguments that are happening right now about the Affordable Care Act right now before the Fifth Circuit. And that case involves whether, you know, Congress zeroing out the individual mandate to zero dollars, render the mandate unconstitutional, and in the words of Judge Elrod, was like Congress's silver bullet to kill the entire Affordable Care Act. And of course, there's nothing in the text of the, you know, statute that zeroed out the mandate to

that effect, like to the extent it's there, it's like in the legislative history, even though they didn't have the votes to actually do that. And so I think the court's treatment of this risk corridor case might actually be a pretty good way of gauging like whether any of the justices are going to be receptive to that argument if it were to come before the court. Right, because you have these similar dynamics of the kind of the political context of all this, which is that unsuccessful sort of full frontal attacks on the ACA sort of get kind of channeled into these kind of collateral attacks that then have to be reconciled with the overall statutory structure that remains intact-ish. And in some ways, I think it's right that both of these cases

are helpful illustrations of the limitations of textualism, because sometimes you just have multiple enactments, and what you decide matters as between these competing statutory provisions. And again, some may be statutes and some may be in appropriations riders. And either way, you need to reconcile them. Right. And sometimes the only way to do that is to sort of look at context and context can cut in a bunch of different directions. So figuring out sort of what what they mean, how they work together, what the context is, how much we care about these extra textual considerations, materials, statements. You know, I'm not sure that anyone on the court, even the most avowed textualist, is going to be able to say any provision of text alone answers these questions of meaning. Because they just so often don't.

And, you know, they may try to frame, you know, to dress up in sort of textualist garb, whatever they decide to do here. And here I do think that, you know, again, Clement's brief is really strong and persuasive and does seem to, I think that that provides the sort of cleanest textualist argument, I think, for the, you know, the court and maybe even like a, you know, unanimous or close court to adopt, which I think would sort of kill some of the conservatives on the court to have to do something that sort of reaffirms the integrity of the original ACA. And yet here to say this is what the text provides, you know, Congress, you got to do it in a more straightforward way if you want to change statutory meaning. But again, because

it would require them to reaffirm something about the original aca i feel like it would it's these cross-cutting political dynamics in the case i think are super interesting yeah and text is rarely a political and i think it is it is it is a worthwhile exercise to take text seriously so i i don't want to be mistaken as suggesting otherwise, but the fetishization of text in isolation is just like, it's almost always kind of a ridiculous fiction, I think. But in cases like this, it is especially illustrated just why. Yeah, I think, you know, Paul Clement's brief on behalf of the insurers is particularly strong here because his argument isn't just that, well, if you look at the text, it doesn't, it doesn't explicitly repeal the pre-existing obligation, but it's relying on those canons you mentioned, which is that in appropriations writer context, we generally presume that the canon against implied repeals is particularly strong,

given that private parties will often rely on government representations that the government will fulfill its obligations to pay out money. And it's really the government's reputation as a kind of reliable partner that's at stake if you allow the government to kind of play fast and loose with its obligations as it arguably tried to do here. And so that to me is partially what's really like bolstering and animating these like textualist arguments

on behalf of the insurers here. Okay, anything else to flag from the December sitting? I think two cases just super quickly that maybe we want to flag for different reasons. One is Holgan Hernandez versus United States, which is a federal sentencing case about whether a defendant has to formally object after a judge announces a sentence

in order to preserve an objection to what's called the substantive reasonableness of the sentence, i.e. whether the sentence is too long in order to carry out the purposes of punishment that Congress listed in 3553A, the federal statute governing sentencing. The case is partially interesting because there's a court-appointed amicus to defend the judgment below that court appointed amicus is K. Wynn Allen. Cool. Nice. Congratulations, K. Wynn Allen. I meant to look and I haven't, so I actually don't know if this guy has done previous Supreme Court arguments. He has not previously done a Supreme Court argument.

Okay, thank you. Leah, you always do your homework. Man, thank you for checking that out. So despite the fact that the court sort of deviated from its standard model for these amicus appointments when it appointed Paul Clement in the CFPB case, it has reverted back to its usual practice in this case, which is it likes to give relatively recent former law clerks to the justices this extremely valuable chit which is the opportunity to do a first supreme court argument so that that is and it you know it tends to do though not exclusively this with recent clerks white guys that that that really really have a type when it comes to these invitations and um this lawyer is very much

in that school um so just to beat my hobby horse for a minute, the justices, I think, should cast a slightly broader net. You know, there are lots of really good lawyers out there. Doing a Supreme Court argument is a big deal, but also something that people beyond just the tiny universe of recent former Supreme Court law clerks are fully capable of. Poor white men. Poor white men. It's really striking. It's like they're trying. Like there actually are plenty of, you know, women and people of color,

not as many as there should be, but not none who clerked for the Supreme Court in the not too distant past. And yet none of them get these invites. Yeah. And this is another sitting in which 32 advocates are arguing, three are women. It's just appalling per usual. So one other case I just wanted to flag is another sentencing case, McKinney versus Arizona, that I think could be potentially pretty

significant. It basically involves the question about what law a court has to apply when a defendant is ordered resentenced. So in this case, the Court of Appeals for the Ninth Circuit said that the state erred because they excluded evidence of the defendant's mental incapacity on the ground that the mental incapacity wasn't tied to this particular crime. So there wasn't like a causality standard there. That was in violation of a previous Supreme Court case, Eddings. So what the state did is, instead of doing a new resentencing, the state just sent it back to the state Supreme Court, basically saying, like, perform your own analysis about whether the defendant should be sentenced to death,

you know, basically including evidence of his mental incapacitation. And the defendant said, whoa, whoa, whoa, that's not how this works. You know, first of all, I get a new resentencing. And second of all, you know, the Supreme Court has said it's up to a jury, not a set of judges to determine whether to impose the death penalty. And the state here is basically arguing that when a defendant's case is remanded for resentencing, the state is not obligated to comply with any Supreme Court decisions that have happened in the interim that might say the resentencing should be conducted differently. So in this case,

that the defendant should have been resentenced by a jury rather than a judge. I think this argument is like kind of really bonkers in that it really complicates the court's existing retroactivity jurisprudence, which before this case was, once a defendant is ordered to be sentenced, basically the judgment is no longer final because the judgment has been undone and like the state is allowed to replace it with a valid one.

Whereas the state is basically arguing like, well like well no the judgment is like partially final with respect to this rule that like only juries get to resentence or only juries get to sentence defendants to capital punishment and so it's just this incredibly potentially significant case that could have wide-reaching implications for the coherence of the court's retroactivity jurisprudence and also I think like the integrity of these resentencing proceedings, which if the state prevails means they're going to be conducted in like obviously unconstitutional ways. Like it's fine.

You can do this in lawless and unconstitutional. Right. Yeah. That seems both substantively and symbolically deeply problematic. Yes. So there was a really good amicus brief by the MacArthur justice center that we don't have time to go into. But as a resentencing retroactivity aficionado, that brief really spoke my language.

Awesome. Okay. So let's talk about a handful of other things that don't directly relate to the December sitting. One, since you previewed the Census Bureau, the Commerce Department, and the imperative enforcing the Voting Rights Act, we got a few developments, I think, since we last addressed the issue in the census case. One, so we learned today or yesterday that somehow commerce is still supplementing the administrative record in this case that the Supreme Court decided in June. So do you think in those additional records, there is the decisive proof that the Voting Rights Act rationale was the real rationale motivating Commerce Secretary Wilbur Ross? It's there, right? You know, it's funny, Kate, you say that because there actually is some discussion of the Voting Rights Act in these emails, but it's only in an effort to concoct a justification for a plan that they have

already agreed to in consultations with republican redistricting specialist thomas hofeller who would have guessed oh my i know um and and so yeah so there are additional um both more record materials filed in the district court and additional documents obtained by a congressional committee that does suggest additional communications between these government officials and this redistricting official, Hofeller. And so there are sort of new – there's new fodder for the sanctions motion that is already pending before District Judge Jesse Furman. So we'll continue to update our listeners on that case, which seems like it's going to be going on for quite some time. I know. I mean, honestly, I'm always happy to, you know, continue to have an excuse to keep making these Voting Rights Act jokes. Also, one of my greatest achievements in life ever was to send Dale Ho, the lawyer representing

the plaintiffs challenging the litigation, a little bandana for his red poodle Phoebe that said Wilbur Ross, the Secretary of Commerce, lied. Did you have a custom bandana for his red poodle phoebe that said wilbur ross the secretary of commerce lied i did you have a custom made just for dale or do you have more copies out there um maybe that's like two made for dale nice but that's it and maybe really he's the only person whose dog could wear that bandana like in exactly that spirit exactly um so well i don't know or barbara underwood might have a dog. And if so, like maybe you should offer to send her one too. Email me, Barbara. Okay. What else? What else do you want to flag, Leah?

So some initial buzz about Ruth Marcus's forthcoming book on the Kavanaugh confirmation hearings, which has a publication date in early December. Right. So we've talked a bit about there was a book by two New York Times reporters about Justice Kavanaugh and the confirmation. And so this is the second book in that category. And it is definitely getting some early buzz. So there is apparently some sort of well-sourced reporting that suggests that Justice Kennedy asked President Trump to put Kavanaugh on the Supreme Court. There had been some speculation to that effect, but this seems to be more sourced than the speculation that we had all previously heard. critical material regarding Senator Dianne Feinstein's handling of Dr. Christine Blasey Ford's initial complaint, that she slow walked it, that it took weeks and weeks and weeks before she even told her colleagues on the committee, the Senate Judiciary Committee about it, that

she placed all these limitations on what her committee staff could even look into regarding the allegations. And it sounds like Marcus very much acknowledges that Feinstein was in a difficult position in light of Blasey Ford's real interest at the outset in remaining confidential, remaining anonymous. And yet it sounds as though, you know, much like I think was the case when you sort of get the kind of internal story of the way Anita Hill's allegations initially surfaced and then treated inside the Judiciary Committee. It seemed as though things were going very differently from the public's vantage point in this saga. But in fact, behind the scenes, it actually seems like the echoes were remarkably loud. But we don't know. I have not seen galleys of the book yet, so I have not read it. But those are sort of the kind of key tidbits that I've read about. Yeah. So I'm really looking forward to reading that one.

And of course, the president himself has already, let's say, quote, recommended the book on Twitter. I'm sure if you're Ruth Marcus and the president attacks your book on Twitter, you're happy, right? It has to be good for book sales, if nothing else. Okay. So speaking of Kavanaugh, you know, we thought we might mention both Justice Kavanaugh's first speech as a sitting justice to the Federalist Society, right? And this happened in the context of their big annual gala. And at that same gala, Attorney General Bill Barr gave a weird, weird speech. So we thought we'd talk for just a couple minutes about both of those. So do we want to do some table setting regarding the Federalist Society first? Does that make sense? Sure. So we can't possibly do justice to this topic in a short court culture segment,

but we did want to provide some background. And if you're interested in reading more, Stephen Tellez has written a series of fascinating articles as well as a book about the origins of the Federalist Society. So has Amanda Hollis-Bruski at Pomona. She wrote the award-winning book Ideas with Consequences about the origins of the Federalist Society and the conservative legal movement. And so, you know, for our purposes, I just kind of honestly want to draw on Bill Barr's speech a little bit because he talked about the origins of the Federalist Society in his speech to the group. And he discussed them as a group that played a historic role in making originalism mainstream. the origins of this group was to make the Federalist Society basically a laboratory for conservative legal ideas and to make the group associated with the Reagan White House

so that it became kind of a launching pad for people affiliated with a group who were well versed in these ideas to have those ideas kind of populated in government to bolster their credentials and then to potentially confirm some individuals to Article III and to make this group kind of an opportunity to bolster these ideas and a network to build the people up within the group and to make the group a kind of gatekeeper for these opportunities in conservative administrations

and for judicial appointments as well. And it has been, we should say, wildly successful at doing that. Right. So, so I, I told you the story a little bit earlier, Leah, but I'll do a brief version of it, which is, so the federal society has this big gala every year and the year that I clerked for Justice Stevens, we got one day an email from a Thomas clerk who said everybody's invited to the Federalist Society Gala and it happened to be the 25th anniversary. And my co-clerks and I, none of whom were members of the Federalist Society, thought that actually sounds really interesting.

So we wrote back and said, yeah, sure, we'll come. And the Thomas clerk wrote back, are you serious? And we wrote back, yeah. Are we invited? And she said, oh, yeah, yeah, sure. So we went and expected to be, you know, kind of sociologically really interesting. And obviously, I had been to Federalist Society events in law school and of hand in glove with government and sort of work at placing people in government positions and on the bench and things like that. But I don't think I had quite realized – so this was the late Bush administration. I don't think I had quite realized how totally successful that project had been. So at this dinner, the president, President Bush, gave a video address.

Four sitting Supreme Court justices addressed the group either in person or by video. And there was like a fifth who sent regrets or something, you know, like it was wild, both that fact and the fact that sort of the substance of many of the speeches reflected something very different from that, which was this sort of feeling of kind of a beleaguered and kind of fringe identity, one that sort of conservative legal ideas were still ones that were not in the mainstream and that there was this kind of oppositional solidarity, right, that sort of flowed from membership in this kind of outsider organization, which I think actually in its inception, the Federalist Society really did feel that way to a lot of its founders who felt as conservatives on law school campuses as though they didn't have much of a community. And so I think that ethos very much still permeates the organization. And yet the sort of reality on the ground is that it is a wildly powerful organization. The president of the country was speaking at this dinner. And so I just found that dissonance so hard to get my brain around. And so I just found that dissonance so hard to get

my brain around. And so that I remember being sort of my big takeaway from that dinner. So I also attended the Federal Society Gala when I was clerking at the court, and I think did so at a kind of different maybe moment of my life. So I clerked for two years during the Affordable Care Act litigation. And I think that they were very formative experiences in my outlook on the law. So anyways, I go to this event with one of or at least two of the Kagan clerks, I think. And at the beginning of the event, one of the Supreme Court justices announces that he's going to lead the entire room in prayer for the health of two of the other Supreme Court justices announces that he's going to lead the entire room in prayer for the health of, you know, two of the other Supreme Court justices. As my name might suggest, I do not practice the Christian faith, and yet everyone is kind of reaching around the table for hands and, like,

bowing their heads in prayer, all to the greatness of Justice Scalia and his health. And I just like I did not know what to do at that moment. And it was an incredibly interesting thing to observe. Yeah, it's I remember that feeling to this kind of assumption that everyone in the room was on the same team and but it's a big public event. And, and then, you know, and you did feel like an interloper. At least I remember my co clerks and I doing. But anyway, it was I thought it was a fascinating experience. I was glad that I went. And, and you, I think, were really struck by what felt like this kind of sort of, you know, a debutante ball sort of with Justice Kavanaugh as the debutante like feel to this appearance? Is that

does that accurately capture your reaction? I don't think completely, although I do think that that is part of what makes me have the reaction that I did, which is, you know, very much felt like a hero's welcome, like a celebration, like a kind of like coming out party. Don McGahn does this introduction in which he says, you know, Justice Kavanaugh stood for his principles and paid the price. And then Justice Kavanaugh gives a speech in which he says, you know, through good days and bad days, I never felt alone. I am great for my friends. And then as he's like ramping up the speech, he says, many of my friends risked their jobs and their livelihoods to support me. They paid a huge

price, and it pains me that they stood up to defend me. I am on a lifetime mission to thank my friends over and over again. And part of what is so jarring about this is, of course course Don McGahn and Justice Kavanaugh are talking about the fact that like he was credibly accused of sexual misconduct the principle that he stood for is I guess right like not back down in the face of those allegations he is thanking the people that dismissed those allegations on his behalf and that stood by him like as he kind of lashed out at the committee and like called them a political hit job on behalf of the Clintons I know we've talked about this like a few times on this show but like I have real hesitation and like real discomfort

about pretending as though that never happened and just like welcoming someone not even welcoming someone um but just treating someone like just as just any other supreme court justice that didn't emerge from that process and having this like wild celebratory dinner at which like he is applauded for again like standing for the principles in the way he did and people are cheering for him saying I'm never gonna forget the people that stood by me again like in the face of an allegation of like sexual misconduct and multiple allegations of sexual misconduct it's just like incredibly unsettling to me and watching and seeing the like sheer number of people like at that event and being like this is like such a wonderful moment in

my life to like hear him give this speech was extremely again like unsettling and off-putting to me and I think like a fair number of other people who like in their mind like the image of this guy like lashing out in the face of those accusations and Christine Blasey Ford like still not being able to return to her job and Justice Kavanaugh announcing that like he's back to coaching eighth grade basketball and everyone is treating him as like the greatest thing since sliced bread because like he's a supreme court justice now you just look at that and it's very hard i think to think yeah like that's that's how this process should work yeah so and i i think it's hard and also

it's an he made the choice to focus on it. Yes, exactly. And that is a choice that I think— And they made the choice to welcome him and celebrate him while he spoke about this. Right, right. But I mean, even if they had made the choice to invite him and he had made the choice to talk about something totally unrelated to his confirmation, I feel like that would have at least communicated—I mean, I'm not saying that that means anyone else should move on or get over it. But to the extent that you're saying I can't quite move on, he is very much not moving on either. And in a way, that seems only to further justify sort of continuing to, you know, not focus on it, not every time we think or talk about Justice

Kavanaugh necessarily. But because what to me is troubling about this, you know, I'm focused on my friends and those who stood by me suggest that I'm also focused on those who accused me. Yes. The members of the committee who took seriously those accusations and the members of the Supreme Court bar who did. Yeah. And so and that suggests to me, you know, an appetite for, I don't know, vengeance seems probably too strong, but that, but that, that it is, he has not moved on. And if he has not moved on, I'm not sure where any obligation for anyone else to move on should flow from, I guess. Yeah. Like it was just like some combination of like,

I wasn't sure whether like inviting him then celebrating that speech was rubbing people's face in it or just an utter cluelessness that this might be really uncomfortable for people that have some experience, either they themselves, their family, their friends, with allegations of sexual misconduct and feeling like holding up someone who's been accused of that as it was just really kind of hard for me to watch. Yeah. Yeah. Okay. So we're almost out of time. So do you want to talk for a minute about A.G. Barr's speech? Oh, boy. We only have two minutes, but I'm not sure. Then we get to the real, real crazy part. Where to even begin? You know, it's interesting. I'm glad you mentioned that there's this kind of interesting duality that you perceived in the Federal Society gala between this group that is incredibly powerful and yet still very beleaguered and agreed because this really came through in the Barr speech. So during the speech, he said things about like the presidency is under attack. I'm concerned that the deck has become stacked against the executive.

And the presidency is at a disadvantage relative to the other branches. Unfortunately, over the past several decades, we have seen the steady encroachment on executive authority by the other branches of government. This, of course, runs counter to, I think, like every political scientist and legal scholar who has descriptively understood that the presidency has become relatively more powerful. Whatever your normative views on that fact fact the descriptive story is just of increasing presidential power i'm not saying it's unanimously held but it's pretty close and this right speech was in direct conflict with all of that uh yeah and then you know it simultaneously like told these stories about how like the greatest insight of the constitution was to give the president

these powers to like act on behalf of the security of the nation, whether or not there's any congressional statute kind of on point, which is just like an incredibly aggressive view of executive power that I think is pretty concerning to at least some number of people. It was also incredibly partisan. In any age, the so-called progressives treat politics as a religion. Their holy mission is to use the coercive power of the state to remake man and society in their own image according to an abstract ideal of perfection. Whatever means they use are therefore justified because, by definition,

they are virtuous people pursuing a deific end. They are willing to use any means necessary to gain momentary advantage in achieving their end. I mean, this is the nation's chief law enforcement officer? Yeah. Wow. Yeah, yeah. No, the politicization of the, I mean, and that's also a trend that predates Barr, but

I think he has definitely moved it to a sort of a new level. And there was, it wasn't only kind of partisan. There was like something very, it sounded very Trump-like, right, at points, this speech. And there was one point in particular that I thought, I had that thought about sort of, especially, which is, you know, he says, One of the ironies of today is that those who oppose this president constantly accuse this administration of shredding constitutional norms and waging a war on the rule of law. Of course, there is no substance to these claims. When I ask my friends on the other side, what exactly are you referring to? I usually get vacuous I was just like, this sounds like something President Trump would say, which is that he has invented an anecdote, right? Literally, like the president, President Trump bursts onto the national political scene by saying, a credible person has called my office to assure me that President Obama was not born in the United States.

Literally, 2012, this is what he, you know, he tweets this. And it has always been this weird construct he has used. has called my office to assure me that President Obama was not born in the United States. Literally 2012. This is what he – you know, he tweets this. And it has always been this weird construct he has used. I think both to kind of deflect or evade responsibility for his controversial views and positions. But also because, I don't know, he thinks it's an effective narrative or persuasive tactic or something. But the X said Y or people are saying – I mean, you know, once you have your ear open to this, you hear it in almost every remark the president makes, right? On the call with the Ukrainian president. I mean, you know, people are saying it was really bad what Biden

did to shut down the investigation. He says this constantly. And Barr is doing that too. And it's just like, if you're going to take these positions, Attorney General Barr, own them, right? So, you know, instead of saying my friends of saying my friends can't say, I think the president was right with the travel ban and he's been right in everything. And in some ways, it's this big, bold speech, but it's also like that little passage there is almost cowardly. But I really found it a pretty shocking statement start to finish. Yes, absolutely. So then I guess while we're on the topic of presidential power, it's probably worth noting something that was on the orders list from this most recent week, which is Justice Kavanaugh, who was not yet on the court when the court heard a significant non-delegation case, Gundy v. United States, issued a statement concurring in the denial of cert in another case that he was persuaded by Justice Gorsuch's dissent in

Gundy arguing for revival of some version of the non-delegation doctrine. And so in light of that, you know, we are now at five justices who have indicated their support for the non-delegation doctrine or revival of the non-delegation doctrine. And so I think that that is definitely going to be a significant thing to watch for going forward. Yeah. And what kind of revived non-delegation doctrine we see, sort of how big and broad it is, if this is a truly kind of radical sort of overhaul in the power of administrative agencies or something more modest and peripheral, I think very much remains to be seen. But there have been lower court judges and a couple of Supreme Court justices here and

there who have said this is a doctrine that should really kind of constrain agency power or require different things of Congress. But it's never since 1935 had majority support on the Supreme Court. We are entering a different era. I think that is clear. Yeah. Oh, gosh, that reminds me of one of my favorite lines from the Barr speech. Sorry. One of the more amusing aspects of modern progressive polemic is their breathless attacks on the unitary executive theory. I mean, it's just, again, like this is coming from the guy who leads DOJ. Anyways. He's the attorney general of everyone, right? Including the breathless progressives, right?

He is the chief law enforcement officer of everyone. And yet the speech does not suggest that he sees himself that way. No, it sounds like he sees himself like some dude ranting on a podcast. Anyways, one other case just to mention from the orders list, Thompson versus Hebden, which sent a case back to the Ninth Circuit

to reevaluate the constitutionality of Alaska's restriction on campaign donations in excess of $200, I think it was. I think it was $500. But either way, it was the lowest, I think, of any state's limits. And, you know, interesting, they noted dissents from this order. So I feel like with all of the kind of sort of dismantling and deconstructionist projects that we've all been sort of attuned to with this newly constituted Supreme Court, the kind of dismantling of campaign finance regulation is something that has a little bit been on the back burner. But we should remember that, you know, we have sort of post-Citizens United, we have had some attacks on the sort of remaining federal laws and state laws that,

you know, limit the influence of money in politics. And yet there is a strong contingent that thinks that basically all of it, the whole enterprise is unconstitutional. And we may see sort of a renewed interest in actually moving that project forward in the near future. Yeah, you're right. It was $500. But at least the state lost on like the narrowest grounds possible, just on the ground that the Supreme Court said Justice Breyer's concurring opinion in this previous case, Randall versus Sorrell was controlling. And so not necessarily, you know, a ground that would invalidate, let's say, like the federal campaign contribution limits,

which are $2,800. But, you know, we'll obviously see the implications of this decision play out in the future. Awesome. Thanks so much, Leah. Yeah, no, thank you, Kate. This is fun. So for our listeners, we should probably mention two things. As we noted on a previous episode, we recently started a campaign to ask our listeners to support the show and in particular support Melody, who splices and dices all of our individual audio files and all of the audio clips that we include for your listening pleasure. And you can still donate in excess of $500 to that Glow campaign.

No constitutional limits. That is true. And if you do want to donate in excess of $500, or let's say less, you can go to glow.fm backslash strict scrutiny. That's glow.fm backslash strict scrutiny. And if you're looking for other ways to support the show and let's say do some holiday shopping, you can also get some strict scrutiny swag on our website, strictscrutinypodcast.com. And thanks to our producer, Melody Rowell. And thanks to

Eddie Cooper for making us our music. All right. We'll see you next time.