Strict Scrutiny - No Coup For You

Episode Date: December 28, 2020

In this monster episode, Leah, Melissa, and Kate recap all of the December arguments, and the opinions we’ve gotten to date. They also deliver some disappointing news to Texas et al: NO COUP FOR YOU! Follow us on Instagram, Twitter, Threads, and Bluesky

Question that arose for me is how do I get on Justice Sotomayor's email blast? Curious minds would like to know. I suspect Melissa is already on them, although I don't think she's going to tell us if she is. She's just been conspicuously silent. Her face is giving nothing away. 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 are your hosts. I'm Kate Shaw. I'm Leah Littman. And I'm Melissa Murray. We have a great show for you today, so let me just give you the brief rundown. We'll start off, as always, with breaking news, and then we're going to recap some of the opinions that just came down, as well as a recap of the oral arguments from the December sitting. And then finally, we're going to do some court culture, which is going to be more news from the Supreme Court.

So this is going to sate all of your appetites for the court before we go on a holiday hiatus. So the first thing we wanted to cover is some breaking news, although it's not so breaking at this point, and that is the wrap-up of the election law cases that made their way to the Supreme Court. In particular, the Supreme Court denied Texas leave to file the original jurisdiction case that Texas had filed against Pennsylvania, Michigan, Wisconsin, and Georgia. The court issued this cursory explanation for the denial. The state of Texas's motion for leave to file a bill of complaint is denied for lack of standing. Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections. That reasoning, of course, is what L.A. Mistal flagged as the most deficient in their complaint.

And a part of me imagined the court standing over a soup counter shouting, no coup for you, you know, while issuing this short denial. But maybe that was just me. That statement was more than the court usually says when it denies leave to file an original jurisdiction case in February when it denied in Arizona versus California. It just said the motion for leave to file a bill of complaint is denied. And it just seemed like an important signal from the court that this kind of case is not how you try to overturn an election. Yeah, you would hope that that message is going to land. We will see. And if some of the court was announcing no coup for you, maybe, maybe Justice Alito and Justice Thomas disagreed a

little bit with that message. It wasn't totally clear. So they issued a separate statement. Their statement said, in my view, this is a Lido statement, actually, but Thomas joined him. In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. I would therefore grant the motion to file the bill of complaint, but would not grant other relief. And I express no view on any other issue. So a couple of interesting things about this. One, it wasn't captioned as a dissent, which I thought was pretty interesting. It was a statement. Now, Thomas and Alito have actually both previously taken the position that the court has to at least allow states to file their complaints in original jurisdiction cases. It's not discretionary.

And when they've done that, I haven't checked all the instances, but when they did that in the Arizona versus California case earlier this year, they captioned it as a dissent. So I thought it was interesting that they didn't do so here. And they said and maybe didn't have to say that they wouldn't grant any other relief. So I think it was possible to read that as siding with, you know, in some sense, the majority or the rest of the court's view that there was no relief that could appropriately be granted in this case. There were some dissenters from that view in the commentariat who said, well, no, they were just talking about the specific relief with respect to the Electoral College and with respect to electors that they wouldn't grant on an emergency basis, but they weren't signaling any agreement with what the rest of the court seemed to be saying.

And the fact that they said, I express no view on any other issue, I think, was seized upon by those who wish to see some support in the Alito and Thomas statement for this, you know, ill-fated mission that the state of Texas and a lot of other states and a majority of the Republican representatives in the House seem to be on. It was like a little chicken coup for their soul. I thought maybe this was just sort of preserving a position on the scope of original jurisdiction for the future. Just, you know, they have said before that they don't think that the court has broad discretion to deny or to dismiss a claim brought under its original jurisdiction. And I thought they were just simply preserving that. But it did raise

a lot of eyebrows across the commentariat. I think maybe some people thought that they were sort of throwing a bone to everyone trying to please all sides. But these two are not the two who seem interested in pleasing all sides at all. So I think this was just, you know, their deal and maybe just preserving that one position. I think that's probably right. All right. So after this case came down, predictably, the right-wing media ecosystem had a meltdown and some people started saying some pretty extreme things. For example, Alan West, the chairman of the Texas Republican Party, issued a statement where he appeared to suggest that, quote unquote, perhaps law abiding states should bond together and form a union of states that will abide by the Constitution. That sounds remarkably like creating a confederacy. Have we seen that before?

This is all new to me. Not ringing any bells. Yeah, I mean, you know, it was when the Pennsylvania filing in this case used the term seditious, right, to describe what Texas was trying to do here. And that's strong language, but I don't think it was uncalled for. And some of the reaction after the court denied leave to file, I think just vindicated the Pennsylvania and other states' position to take this very seriously and to suggest that it sort of walked up to the line of, you know, posing an existential threat to the union. Because some of the rhetoric, like this Texas rhetoric coming out of it, was really consistent with that, you know, expansive reading of what it is Texas was trying to do here. Some of the kind of eye rolling about how unlikely this case

was to succeed seemed to sort of echo some of the rhetoric surrounding the Texas versus California challenge to the Affordable Care Act, which is to say, well, this is, you know, obviously doomed effort and no one should take it seriously. And I just think like when states are walking into the Supreme Court and asking for specific relief, we all have to take it pretty seriously. And I think it was right of Pennsylvania and the other states not to just kind of dismiss or give the back of the hand to this kind of effort, but to take it really seriously and to suggest that it was, you know, dangerous and seditious. Well, when you can't succeed, you should think about seceding. I thought you were going to say you should coo, coo, coo again, but that doesn't really work.

Nothing secedes like a lack of success. on social media that a source in the Supreme Court allegedly reported a screaming match in the Supreme Court conference room with Chief Justice Roberts browbeating his colleagues into denying leave to file the Texas case. According to the source, the justice, as they always do, went into a closed room to discuss cases they're taking or do debate but when the Texas case was brought up he said he heard screaming through the walls as Justice Roberts and the other liberal justices were insisting that this case not be taken up and the reason the words that were heard through the wall when Justice Thomas and Justice Alito were citing Bush versus Gore from John Roberts were, I don't give a about that case. I don't want to hear about it. At that time, we didn't have riots. I don't know where to start with that rumor. To begin with, the justices are not meeting in person. So this is literally impossible. And of all the justices, the chief is not the one who has heard screaming through the walls. So it just has zero ring of plausibility

to it. That being said, if it did happen and anyone has audio, I would love to use it as my ringtone. We should also talk about some of the commentary about this decision. So there was a lot of commentary about how the system had actually worked. And we've heard so much over the course of the last couple of years about the failure of norms and the breakdown of different codes of conduct, but that we could really always count on these systems, including the courts, to be fail-safes. And many people were saying that's exactly what happened in this particular instance. What do you think of this, Leah? I know you have some views. I just think that's really bonkers to say, well, the courts did not throw out the results of a democratic election and install the loser, therefore, rah, rah, rah courts. I mean,

goodness, like how low is the bar? And I realize it's gotten lower and lower, but we shouldn't jump to the conclusion that all is well in the courts and they Greenhouse in The New York Times all said that, you know, this was a victory, but this was not a shout it from the rooftops kind of moment for democracy. This was just like so egregious that if it had actually worked, that would have been more shocking. This worked exactly as it should have, but that alone was not reason for cheering. Yeah. And I mean that in some ways it's just dumb luck that there were four states and not one state, that at least three states would need to be flipped in order to change the outcome of the election if it had just, this is a point that Ellie made, if just one state were in the mix, I think things would have looked potentially quite different. I also think it's dumb luck to move away from court for a minute that, you know, Brad Raffensperger and not Chris Kobach was a secretary of state in Georgia, right, overseeing these efforts to do all kinds of undemocratic post-election things. And so, no, this was not

some great victory. I think we all managed to sort of, democracy sort of lives to fight another day, just, I think, by sheer dumb luck in many ways. Dodging bullets. When you have, you know, a majority of the Republicans in the House signing on to a brief urging courts to throw out the results of an election, it is really hard for me to walk away from that thing. Yes, everything is working and all is well. And we should see, you know, so a couple of big deadlines have passed, right? The Safe Harbor deadline, the actual casting of the electoral ballots in the states on December 14th. The next big date to keep our eye on is January 6th when Congress actually opens and counts the votes. And, you know, I'm not sure what potential

shenanigans the Republicans in Congress, right, might have in store for us. But I think we should figure out if it makes sense for us to kind of convene something to talk about it, depending on what it looks like going up, you know, in the run up to the 6th, because that could be another sort of stress test, I think. I'm not really worried about it, but I also don't think that it's necessarily smooth sailing from here until January 20th. Well, on January 6th, though, for anything to happen that would be consequential, you need both houses of Congress to take up the matter. And as long as there's divided control, it seems like there's a failsafe there. Well, a failsafe in terms of actually handing the election to Trump, absolutely.

Right, but not in terms of making this show. But in terms of actually drawing out the process and creating a lot of just high drama, as long as you have a single senator who's willing to go along with that effort, I think that they could really at least delay the kind of finalization, maybe not for more than a number of hours, potentially days, but I'm not worried about anything that could actually change the outcome of the election happening on January 6th. Do you remember that book, Kate, like Llama Llama Bedtime Drama or whatever? Do you remember? Did you read that book to your kids ever? There's Llama Llama Holiday Drama. There's

Llama Llama Red Pajamas, the original. There's a lot of spinoffs. Yeah. But it's like, you know, like when the mom says, please stop all your llama drama and be patient with your mama. Like that's how I feel. Yeah. Stop all your llama drama. But I think that there might be more llama drama in store is the problem. Okay. In actual good for democracy news, Attorney General William Barr is announced he is resigning as Attorney General.

What do you think happened? It was a letter, and I have to say this letter was a whole vibe. So first it starts off with, I appreciate the opportunity to update you this afternoon on the department's review of voter fraud allegations. At a time when the country is so deeply divided, it is incumbent on all levels of government and all agencies acting within their purview to do all we can to assure the integrity of elections and promote public confidence in their outcome. Was this snark or was this sycophancy? I don't know. I took it as sycophancy. He is legitimating the efforts to question what happened in the election. That's how I took the opening paragraph. But he previously said that there was no

evidence of voting fraud. Yeah. But he previously said that there was no evidence of voting fraud. Yeah. But he's, like, emboldening people to, like, continue searching for something that isn't there and, like, asking this question to cast a doubt on the election when, like, again, we know there just wasn't that problem. I actually viewed it as a little bit more ambiguous, or at least it's kind of cryptic, that paragraph. I thought so, too. bit more ambiguous, or at least it's kind of cryptic, that paragraph. Because later in the letter, he goes on to praise in very explicit terms the president's efforts in a number of other spheres, but doesn't actually endorse the fraud allegations at the top of the letter, just says, it was great to talk to you about the allegations, doesn't tell us what the conversation entailed, us readers. But then why say anything? Yeah, I found it so puzzling.

I thought that might have been snarky because the rest of it is extravagant in its praise. Your record is all the more historic because you accomplished it in the face of relentless, implacable resistance. Your 2016 victory speech in which you reached out to your opponents and called for working together for the benefit of the American people was immediately met by a I mean, like, I remember... See, I'm so mad this letter came after you guys did a special episode with Ellie. I know. This would have been an amazing dramatic reading. Like, that was wrong. Obviously, I'm still working out my own feelings about it.

But, yeah, this is a lot. This is a whole mood. But why do you think he resigned? Do you think he was forced out? It's certainly possible. The president has obviously soured on him and is displeased with his failure to manufacture actual fraud evidence that would embolden the president in his efforts. And so, yeah, maybe that was the last straw. It's possible. It's interesting that if soened the president in his efforts. And so, yeah, maybe that was the last straw. It's possible. It's interesting that if so, the president didn't say so, right? Although the president doesn't actually relish firing people to their faces, as we've now all learned. He does like to claim credit for departures, and he sort of allowed Barr to tell the story about more time with his family over the holidays. I don't know.

I think it's entirely possible to me that Barr wanted out before this kind of pardon palooza that we seem to be in the early stages of. And if, you know, if Trump is very seriously considering his self-pardon, I think it's possible that Barr, you know, wanted out before that happened. So, yeah, I think that's a real possibility. I also like the possibility that Bill Barr is going to take his family on a Clark Griswold style vacation across the United States this Christmas. And, you know, they're going to be in the station. Holiday Road. The whole thing.

That's what I think. Whatever he does next, you know, a tenure that began with this preposterous and fawning letter. Do you remember that audition? Oh, yeah. With a preposterous and fawning letter. So should we move on to opinions and argument recaps? Yes. So the first joint opinion and argument recap we wanted to cover, because the court issued a decision so quickly in the case is Trump versus

New York, the census case. This is a challenge to the presidential memo directing the Secretary of Commerce to prepare a report excluding non-citizens from the population base that will be used for apportionment, among other things. And it was issued after the big Supreme Court loss over the citizenship question in Department of Commerce versus New York, which invalidated Commerce Department's effort to add a citizenship question to the census. Commerce had maintained it did so to enforce the Voting Rights Act when everybody knew they did so in order to enable apportionment that would exclude non-citizens, and the court, again, invalidated the citizenship question. Okay, so case was argued November 30th and on an expedited schedule because the memo called for the secretary

to deliver the report to the president by December 31st. And then after that date, the president must submit a report to Congress within seven days of the beginning of Congress's term, which will be January 10th or 11th. And then the clerk of the house must within two weeks send certificates to each of the states, notifying them about how many seats in Congress

each state can get. And on December 18th, which was a Friday morning, we got an opinion in the case. So again, very quick turnaround on this. We know that the court was moving quickly because they added an extra opinion announcement date to the calendar at the last minute. And as Leah and I predicted when we covered this case in the term preview, the court's conservatives ended up punting the case, finding that it was not justiciable. Specifically, they said that the challenge wasn't ripe because it was not yet clear what the plaintiff's injury would be or whether they would even be injured at all. So again, this is a per curiam opinion, so we don't have an identified author here. But it's worth noting that the administration's memo, as you'll recall, directs the Secretary of Commerce and the

Census Bureau to exclude all undocumented persons from the census count to the extent lawful and feasible. And the government argued, and the court here agreed, that we don't really know how many or which undocumented individuals are actually going to be feasibly excluded. So would it be persons in ICE detention? Unclear. Persons subject to final orders of removal? Don't know. Persons denied parole in the United States? We don't know. And since we don't know, we don't know if there will be an impact on the apportionment of congressional seats or federal monies or anything like that. So we don't actually know if anyone's going to be injured by this. And the court also pointed out that the memo qualified the directive,

quote unquote, by providing that the secretary should gather information to the extent practicable and that aliens should be excluded to the extent feasible. Any prediction about how the executive branch might eventually implement this is really no more than conjecture at this time, the court said. And that we don't know basically how many persons the government is actually going to determine it's feasible to exclude. And so according to the court, everyone agrees by now that the government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status. And that in turn raises some concerns about the remedy.

An injunction would prohibit the secretary from informing the president in the 141B report of the number of aliens without lawful status. And in addition to implicating the president's authority under the opinions clause, the injunction reveals that a source of any injury to the plaintiffs is the action that the secretary or president might take in the future to exclude unspecified individuals from the apportionate base, not the policy itself in the abstract. This is just like a little aside, but I did think it was very weird for the court to invoke the opinions clause in its short opinion. It wasn't an issue in the opinions clause didn't come up in the oral argument. It was barely in the briefs.

I'm not sure what like nefarious groundwork is being laid here, but it felt like something. So the opinions clause didn't come up specifically, but several justices liken the injunction to something like a gag order on the president's aides to the president. And I took that to be gesturing in this direction. And my concern is this is going to end up being some kind of like subterfuge-y attack on the ability of courts to enjoin the president's subordinate officers as a way of effectively enjoining the president

because given the court's like expansive interpretation of the First Amendment and what speech is, you know, they could say, well, all of these injunctions are effectively like cabining speech, are effectively gag orders. And that implicates the opinions clause, because what lower courts have done is issue injunctions against the president's subordinate officers in order to avoid having to, you know, issue an injunction against the president, which they don't know, you know, whether it's permissible. I don't know. No, I think that's a great point.

And yeah, for sure, Underwood kept getting pressed on this question. Well, is this a gag order, really? Which is what then she said, no, it's not. But the clause itself didn't come up. But I think that's definitely right. Sort of whether, however you want to frame the constitutional infirmity with one of these injunctions, whether, right, it's like a First Amendment grounded or opinions clause grounded or some intersection of the two kind of concern, right? I think that that's a very astute

observation. And maybe that's why it made me so uncomfortable to see its kind of gratuitous invocation in this per curiam opinion that didn't require it at all. They're talking about the speculativeness of the count and thus the harm that flows from it. And so there's really no need to say anything about this provision at all. Well, why not speculate about some possible constitutional infirmities with a remedy? Why not? Why not just shoot the shit? Hey, yeah, Friday, December 18th. One, I think, critical takeaway that's important to understand is that the Supreme Court in no way made a determination that this memo is lawful. If it is the case that the president even tries to do something along these lines,

which is a big question because it's not at all clear what specific information the Census Bureau is going to be able to provide about undocumented individuals in different categories in time. But if that does happen, and if the president tries to make adjustments to the report he sends to Congress in reliance on that data, there will absolutely be additional litigation. But Kate, if there is additional litigation, there's still this open question of whether you can actually intervene later after the memo is transmitted to the president. And this is all, again, part of what Leah just mentioned, which is this whole issue of whether you can actually enjoin the president. So post-apportionment litigation, I think that there would have to be a challenge.

I mean, there's a couple of things. One, I think it's the case that I think it's an open question whether a court can enjoin a president. The Supreme Court has studiously avoided giving a direct answer to that question. the Solicitor General for New York, Barbara Underwood, seemed sort of strangely to concede or at least to suggest that there was a very good chance that it was, you know, outside of the court's authority to do so. I think that probably was a little bit more of a concession that she needed to make. But in any event, she basically said, look, it's irrelevant because what courts do is direct, this is Talia's point, direct subordinates to the president, you know, declare what the law is and assume that the president will abide by the law and that that's

sufficient essentially to achieve the same objectives as in joining the president directly. You know, I think it's right that because this would be post-apportionment, there would be, you know, a question of sort of to whom or against whom the injunction would be directed. But Franklin versus Massachusetts, right, which is the big census case from the 90s, did involve a post-apportionment challenge. Now, there the court, you know, didn't invalidate what the president had done. But it's certainly the case, at least, that courts can entertain post-apportionment challenges to sort of census determination. So that, I think, is clear. This is the whole question that Jeff Wald was talking about in the oral argument,

like the whole unscrambling of the egg once the apportionment process had been undertaken after the transmittal of the memo. So this is, again, part of the issue and would still be a part of the issue, even if this were litigated again. With respect to unscrambling the egg, I think it's right that if the litigation took months and months, such as these numbers had already gone to the states, then I think it would be very difficult to unscramble the egg. But so long as the House is still in the process of making its calculations with respect to sort of how many seats each state is entitled to, then I think it's not at all too late. And certainly it remains the case that

the numbers need to be generated in a fashion that doesn't violate the Constitution or statutes. And we should also note there are doubts about whether President Trump is going to have the information in hand by the deadlines, the memorandum requests, and also doubts about whether he will even have the information in hand by the time he leaves office, in which case it will be quite easy for the Biden administration to reverse it. If, however, President Trump does get the information, it will be harder but not impossible for President-elect Biden to reverse it. If, however, President Trump does get the information, it will be harder, but not impossible for President-elect Biden to reverse this. Some leaked documents suggest that, you know, the earliest release dates are somewhere end of January, maybe even beginning of February. And this, of course, is going to span the transition period. And so it's just not

clear exactly, you know, when this information will be available. Yeah. I mean, I just, I've been wondering for weeks, I'm sure you guys too, sort of what exactly the dynamic inside the Census Bureau is right now, right? So Wall said repeatedly to the justices, you know, they're working feverishly to try to generate the reports that we are requesting. And are they? I mean, I just, you know, this is a, I think, pretty clearly lawless directive. And I think that these sort of conscientious, hardworking officials inside the Census Bureau who already were sort of pressed into service of this unlawful mission with respect to the citizenship question and raised real questions, we know from the district court litigation,

about the directives that they were receiving. I imagine those same dynamics are at play right now. So now, do I think that they are outright refusing to abide by the request to compile this data? No, of course not. But I imagine that they are raising the same kinds of concerns that they raised during the, you know, citizenship proceedings. And all of that internal friction, I think, makes me at least think that they're not likely, the administration is not likely to be able to generate sort of much in the way of data that would be usable, even if they were able to get, say, you know, the numbers of detained individuals, right, in ICE custody or with, you know, orders of removal. But I think that's probably it.

Even the DACA population, I'm not sure because there's, you know, it's not just individuals who are in DACA status, but it's matching those individuals with census respondents. And that seems to me a major undertaking. So I guess that maybe transitions to what do we think of the court's reasoning? Justice Breyer filed a dissent in which Justice Sotomayor and Justice Kagan joined, and he managed to get this drafted in like two weeks with everything still remote. So good on Justice Breyer and good on Justice Breyer's law clerks. I also think they're just kind of right here. You know, the government did not at all back away from the idea that it was pursuing

the maximum possible enforcement of this memorandum. You know, the stated goal of the memo is to diminish political influence and congressional representation of states where undocumented individuals live. The president announced that they were gathering this information more than a year ago, and they've spent over a year collecting records. And, you know, Melissa, you noted the court stated that the government had disavowed trying to exclude all undocumented individuals. And I just don't think that that is correct, as Justice Breyer noted. So we're going to play actually three clips from argument in

which both the Chief Justice and Justice Gorsuch asked the government if it was still possible that they would exclude all undocumented individuals, and the government just refused to disavow that. General, just very quickly, should we assume that we're not going to be talking about all illegal aliens in the country, but some subset, some uncertain subset, like the ones in ICE detention? I think it is very fair to say, Mr. Chief Justice, that the president has not made a determination yet because we don't know what's feasible. It seems like the one common ground is that the 10,000 or whatever number it is currently in ICE detention is something you think will happen. Beyond that, can you give us any sense of the difficulties or likelihoods? I can't, Justice Gorsuch. The Bureau is working very hard, but as I say, until they actually do the comparison, we just won't know

how many identifications we're able to make and whether that stands to affect the apportionment. So is it a reasonable prospect to think that it would be limited to the number of persons currently in ICE detention? I think that's possible, but it is also very possible that they will be able to do more. As I say, we just we don't know at this point. There was all this tension in the government's position that really came out at the oral arguments, which just made the SG's arguments really weird, I thought. Like, you know, they didn't disavow an effort to kind of maximally implement the executive order. But they sort of said, look, we don't know what we can do. Maybe we can only do very little. Maybe we won't be able to even do enough to change a single congressional seat or

any federal funds. And so that's why the case isn't right. But also that we want you to reach out and decide in the abstract that the president can do this, we think clearly unlawful thing, right? That's obviously not what the SG thinks, but that's what we think, that he really wants to do, but maybe can't even do to the fullest extent of his desires. Like, it was just such a strange position that the government was in throughout. And, you know, it did seem like Breyer kind of really captured that in his dissent. Also in the dissent, Justice Breyer mentioned some other exchanges from oral argument in which both Justice Sotomayor and Justice Kagan emphasized that the government has quite a lot of information on undocumented individuals, even though it might not have the matching in place.

It has these records for a super long time, which might make matching easier. You're saying, well, yes, there's this small category of ICE detainees that seems pretty feasible, but that's just tens of thousands of people. So how about a few others? As I understand it, there are almost 200,000 persons who are subject to final orders of removal. Will the Bureau be able to report on those? It is working very hard to try to report on that subset, yes. Okay. There are 700,000 DACA recipients.

Will the Bureau be able to report on those? It is working on that, too. We can't be certain at this point. And we don't know what the president will decide to do with respect to that set. I mean, obviously, you have papers, all kinds of records on those people. So I would think that that sounds pretty feasible to me. Another thing I just wanted to note about the Breyer dissent is, you know, he kind of took it up a notch. He brought some heat. He made it a little spicy. Sriracha. Sriracha Steve. Sriracha Steve. This guy got hot sauce in my bag. So, you know, I think a very pointed remark in the dissent was, whereas here the government acknowledges it is working to achieve an allegedly illegal goal, this court should not decline to resolve the case simply because the government speculates that it might not fully succeed. That captured the exact tension, right? Yes. That so permeated this administration, which is they are clearly trying to do malevolent illegal things.

They're just doing so, so incompetently that it might save them and us. But that shouldn't work to their benefit here. Such a great point. At the end of the opinion, he also mentioned how dangerous it is to the democracy to mess with the census. So I also thought that that closing was notable. Since we didn't get actually to recap the oral argument, which was actually a very eventful oral argument, there are just a couple of things that we wanted to highlight before letting them get totally overtaken by the opinion itself. One is that strict scrutiny guessed and low-key star of the fight, Dale Ho, argued.

F them up, Ho. That's right. I forgot his street name. Say his name. Dale fuck them up, Ho, argued and was just truly spectacular. Like the amount of knowledge he has about this entire process really came through and he was just able to answer everything, you know, very well and very efficiently. Second, as we noted in our episode with Alexandra Petrie, this was the oral argument where Justice Alito actually interrupted one of the other justices, Justice Sotomayor. The chief justice had tried to end Justice Alito's questioning period

by calling on Justice Sotomayor, but Justice Alito kept going. Justice Sotomayor? If I can move on to my second point. And then he finally gets him to stop by asking him again twice to discontinue. This person is a resident like any other undocumented person. Justice Sotomayor? Justice Sotomayor? So, Leah, it's possible that Justice Alito didn't hear the chief justice asking him to stop multiple times. But I think it's important to contrast this with an earlier episode where Justice Breyer was wrongfully cut off, cut off by mistake. And he actually apologized for being injured in this way. He apologized and then he agreed to forego the questioning time that the Chief Justice gave back to him. Whereas Justice

Alito, I think he tried to keep going because after the Chief says, Justice Sotomayor, Justice Alito says, Chief, as if to try to plead his case again. So I think he heard it. I think he heard it. I mean, he also was like, I have six more questions and I only got to ask three of them. It's one thing to slip one little follow on question. And this is ridiculous. Yeah. There did seem to be a lot of frustration with the questioning format in this particular argument that also came out in Justice Kavanaugh's questioning of Dale Ho when he used the first moments of his questions to Dale to actually direct questions to the Solicitor General that he wanted the SG to answer. In an unstructured format, he could have asked

those questions during the SG's questioning when they came to him, but apparently they came up afterwards. And in this new format, you can't ask questions in the rebuttal. I actually thought that was smart of Kavanaugh because it did get Wall to address his question during the short rebuttal. So, like, it's actually a clever way, I think, to slip in one additional round of questioning if something kind of comes up and you don't get to directly respond to it. One tiny little catty point I mentioned Barbara Underwood before. A lot of the time this court calls state solicitors general, General X. She was just called Ms. Underwood. Barrett called Jeff Wall, the acting solicitor general, General Wall at the beginning of deputy SG and then acting SG in the SG's office in the federal government at the end of the Clinton administration.

The Texas Solicitor General, Kyle Hawkins, has been a lawyer for like 10 years and Barrett definitely called him General Hawkins when he was before the court. So we need to show Underwood the same respect at the very least. Put some respect on her name. Exactly.

All right. Do we want to go on to the next case? This one was also really spicy and prompted a lot of commentary in the Twitterverse. So this was Nestle versus Doe, a challenge to the alien tort statute involving child slavery. So this is a case about whether a corporation can be sued for violations of international law obligations under the Alien Tort Statute. And here the corporation is being sued on the theory that it aided and abetted child slavery by buying cocoa from and otherwise supporting plantations that used child slavery.

Arguing on behalf of the corporation is Neil Katyal, who has become something of a resistance hero for his role in the travel ban case and appearances on news media. And this precipitated a long dialogue on social media and elsewhere about whether it's fair to criticize lawyers for the positions they argue for, a point I hope will return to later. We briefly alluded to before in talking about the election litigation, but we just have too much to cover today. In the case, there was some brutal questioning for Katyal's position, particularly from Justice Kagan. Child slavery, not aiding and abetting it, but the offense itself. Is that a violation of a specific universal and obligatory norm? Yes, I think we're not challenging that here. It's just the aiding and abetting. Okay, so if that's right, could a former child slave bring a suit against an individual

slaveholder under the ATS? So if it weren't extraterritorial and it wasn't a corporate... Yeah, no problem. Extraterritorial, no problem, aid in a bed, and just a straight suit. Correct. Okay. And could this same former child slave under the same circumstances bring a suit against 10 slaveholders? You know, if they met the requirements under the law, yeah, sure. Okay, so if you could bring a suit against 10 slaveholders, when those 10 slaveholders form a corporation, why can't you bring a suit against the corporation? Because the corporation requires an individual form of liability under a norm, a specific norm

under international law, which doesn't exist here. I think Sosa and... I guess what I'm asking is like, what sense does this make? This goes back to Justice Breyer's question. What sense does this make? This just illustrates the absurdity of his position. But of course, that position is essentially what the court took for foreign corporations in the companion case. So as absurd as that seems, it's not clear that that absurdity will land on at least five members of the court. As Leah was just saying, the court in the Jesner case already held that foreign corporations can't be sued under the Alien Tort Statute for this kind of conduct. The question is just whether they will extend that to hold that U.S. corporations like Nestle or Cargill can't be sued under the Alien Tort Statute either.

Yeah. So what do we think, based on the oral argument, the court is likely to do here? I still think there are five votes to say the suit can't proceed. I'm not exactly clear what the basis for the decision will be. But in that, you know, Jesner case, as we mentioned in the preview, Justice Gorsuch had expressed a view that there's actually no jurisdiction over these kinds of lawsuits since they don't raise federal questions. And I just don't know how the plaintiffs will get five votes, you know, with him already ruled out. And I think other justices possibly sharing a similar position. Yeah, he definitely did write to say that in Jasner, but he did also seem kind of skeptical, Gorsuch, that is, in the oral argument, you know, and that there's nothing in the text of the alien tort statute that specifically exempts corporations at all. That maybe foreign corporations raise different questions, but that if, you know, U.S. individual persons can be sued under the tort statute, maybe, you know, U.S. corporations can as well, since there's no distinction in the statute. I kind of read him to be a little bit in play, but I'm not at all sure.

Yeah, I just like unless it was a diversity jurisdiction suit, you know, there wouldn't be federal question jurisdiction under his theory. And so I just don't know how that, you know, would play out here. All right. We got a lot of cases to cover. So should we move on to Van Buren versus United States? You guys previewed that one pretty extensively, and it's a very interesting case. Melissa, you want to take this one? Yes. It's a very dishy case, as I said before. This was the case about whether accessing information for an unauthorized purpose violates the Computer Fraud and Abuse Act. And as we noted in the preview, the case involves some juicy facts. A officer Nathan Van Buren ran a license check

for a friend who said he wanted Van Buren to check out the information of this exotic dancer that the friend was interested in dating. And so Van Buren runs the background check on her, but it was actually part of an FBI sting operation, and he was charged with violating the Computer Fraud and Abuse Act. At oral argument, again, there was a ton of debate about the actual reach of the statute and what Congress had actually intended the statute to encompass. And Justice Kagan, for example, wanted to know if checking sports scores is really the same thing as obtaining information under the spirit of the statute. Yes, since the information is obtaining under the statute.

The government also offered up a limit it had previously disavowed, namely that the statute applies only to quote-unquote authorization-based systems where individual users are specifically trusted. Leah, you noted a really interesting part of the oral argument that seemed like things were looking up for the defendant, perhaps? So I thought the argument was maybe less skewed toward the defendant than I thought it would be when we were discussing the preview. I thought Justice Gorsuch and Justice Sotomayor were clearly in the defendant's camp, but I still think there will be a reversal. And, you know, the government's change in position that you just noted, I think, suggests that it realizes it has to offer some limiting principle for this statute because without one, it potentially applies to anything. that the court doesn't think defendants have to point to actual prosecutions demonstrating like

the full most expansive reach of a statute in order to adopt a more narrowing interpretation. Like that's, you know, what we've seen in prior cases like Yates or Bond or, you know, whatever the example is that we want to give. Another theme that seemed to be running through this, and again, this I think goes to the question of what limiting principle would exist, was that the justices seemed to be grappling with how expansive the scope of this might be in an age where there are all kinds of authorized users who have access to unprecedented amounts of personal information. And there was this one question from Justice Thomas in which he posed basically a scenario in which someone working at a car rental shop had authority to access information, but you are limited. That authorization is limited as to what you can do with it.

For example, you work for a car rental, and you have the access to the GPS, but rather than use it to determine the location of a car that may be missing, you use it to follow a spouse. Or, as in this case, the use of the information is a problem. So I don't understand why you make the distinction between these two levels or ways that you can have or not have authorization. Do you think it's weird that Justice Thomas wants to know if someone can actually use their authorized information to track down a spouse. Like, it seems like a very specific question. Well, it was just like the facts here were fodder for so many kind of fun hypos.

So, you know, Jeff Fisher, who was representing the defendant, suggested that if you did accept the government's argument, you opened up the possibility of all manner of unbounded criminal exposure. So employees who check Instagram at work, if that's an unauthorized use, individuals who misrepresent aspects of themselves, like shave 10 pounds off their weight on their dating profiles, like that maybe because you were trying to obtain interest from, you know, potential dating matches in an unauthorized way because you've misrepresented something about yourself. Like, all of that could potentially give rise to criminal charges. And, you know, Gorsuch, as Leah said, seemed pretty sympathetic to the defendant in this case. And he didn't respond specifically to those hypos, but he definitely seemed concerned about the breadth of the government's reading. And he did situate this case kind of in

a line of other cases in which the government seemed to be, you know, seeking pretty expansive readings of federal criminal statutes. And the court has, you know, often unanimously invalidated those efforts. You know, he didn't actually mention the Kelly-Bridgegate case, which we talked about a lot and also involved Fagan. We talked about it when we previewed this case. Yeah, yeah. But the court didn't, at least Gorsuch didn't in this colloquy. But maybe let's play this one as well. I guess I'm curious about a bigger picture question. That is, this case does seem to be the latest, as the petitioners point out, in a rather long line of cases in recent years in which the government has consistently sought to expand federal criminal jurisdiction in pretty significantly contestable ways that this court has rejected. Whether we're talking about Marinello or McDonald or Yates or Bond, you pick your favorite recent example. And I'm just kind of curious why we're back here again on a rather small state crime that is prosecutable under state law and perhaps under other federal laws to try and address conduct that would be rather remarkable, perhaps making a federal criminal of us all.

They all seem to be shadowboxing with the prospect that we just live so much more of our lives online than we ever did. And there's just so much more, I guess, capacity for individuals to, one, be authorized users and then also put this information to uses that aren't necessarily authorized. And what does that mean? Yeah. So this conversation has, like, again, made me think that the defendant is definitely going to prevail in this case. Although I think you're right, Leah, that it wasn't as lopsided as, like, the argument in, say, you know, Kelly was. But I'm just not sure exactly how or by how many votes. Right. But that might also partially just be a reflection of this new format when it's a little bit harder to tell where the justices are leaning. Definitely.

So another case that we wanted to recap that we had previewed is Edwards v. Vinoy. This is a case about the retroactivity of Ramos v. Louisiana. From argument, it seemed like Justice Gorsuch, Justice Sotomayor, and maybe Stephen Breyer think the rule is retroactive. The first two aren't surprising. Of course, Justice Gorsuch had said Ramos was not a new rule in Ramos itself.

But Justice Breyer, you continue to surprise and delight. So please don't change your vote. It was a little bit harder to tell where the chief and Justice Kagan were. And I think that they are the other justices who are potentially in play here. The chief focused on how the rule from Schreierow, which Melissa and I discussed in the preview,

was not retroactive. Schreierow, of course, held that defendants have the right to have a jury find all of the elements of an offense. That rule was not retroactive. And the chief says, well, this is a subordinate right to a jury trial, a right to a unanimous jury. And if the greater right isn't retroactive, how could the lesser be?

I'm not sure that reasoning is quite right. You know, a right to a jury might jury. And if the greater right isn't retroactive, how could the lesser be? I'm not sure that reasoning is quite right. You know, a right to a jury might not be retroactive, but a rule that you can't discriminate on the basis of race or sex in jury selection could very well be. And the chief seemed to recognize this later when he suggested that unanimity might ensure accuracy in a way that jury versus judge might not. Justice Kagan at one point said it was a steep climb to establish retroactivity. She also said the empirics were sparse on whether this affected conviction. But I'm not actually sure that's true. I just think the defendant's lawyer, Andre

Bellinger, did a pretty bad job bringing that out. You know, you have Innocence Project briefs essentially going through all of the exonerations and finding that so many of them involved non-unanimous juries. So we know that the likelihood of convicting an innocent person often involves non-unanimous jury verdicts. But she had also said that, you know, Ramos says you haven't been convicted by a unanimous jury, you really haven't been convicted at all, and maybe that means it's retroactive. So it's just harder to tell where the two of them were leaning. Do you think this is an opportunity for her to kind of, I don't know, reestablish her, I guess, progressive bona fides after Ramos? Because remember, after Ramos, there was a lot of sort of teeth gnashing about her decision to join the chief and Alito and refusing to strike

down Apodaca and invalidate the non-unanimous jury rule. Is this, do you think, an opportunity for her to maybe reclaim some of that space? I don't think she really cares that much about establishing her bona fides to progressives. That being said, the fact that she joined the portion of the Alito dissent in Ramos that suggested the majority had devolved into ad hominem attack and that, you know, was essentially anti-anti-racism will just never cease to amaze me. You know, she could have at least joined other portions of it. I told you what I thought about that. I just think like maybe there was, there's like her vote was inconsequential in Ramos, whether, whereas here it actually could be incredibly

consequential. I wonder if she'll take that opportunity. One thing, since we're talking, obviously, Ramos is really central to this case. Gorsuch is clearly still not reconciled to the fact that he couldn't convince a majority of the court that Apodaca wasn't a precedent at all in Ramos. That guy. But it's weird to be relitigating that here. But also, obviously, you know, whether Apodaca was a president bears on the question of whether Ramos made new law. So it's quite, you know, it's a relevant issue here, but it's but also like he didn't succeed there. But it made me wonder whether I don't know what you guys made of this, but you know, this idea that

now Apodaca is sort of sui generis because it's this, you know, single justices vote that, you know. Like Bakke? Right. Like Bakke. Or, you know, I think about June Medical Services actually a lot in this context. You know, it's a single sort of, if you say it's an idiosyncratic vote for a fifth justice and only writing for himself. Like, I actually don't think he's talking exactly or shadowboxing exactly with June here. I just wonder whether this trying to kind of entrench the idea that certain precedents are in fact not precedents at all is a project that he is engaged in, and I worry about it. Again, it may be limited to these sort of idiosyncratic circumstances and a few others like Bakke and June Medical Services.

But if it's a broader idea that there's some set of criteria that allow you to circumvent a stare decisis analysis because you have decided that a decision of the court is not, in fact, a precedent at all, strikes me as a dangerous road to go down. Neil Danger Gorsuch at it again. So we also wanted to recap some of the cases we didn't preview because they were argued in the second week of the December sitting. Really quickly, there's a super interesting tax remedies case, CIC versus IRS. I love Leah saying the sentence

is super interesting tax remedies case. It actually is. Yeah, it implicates Henry Hart's dialogue about jurisdiction and the federal courts and when federal courts need to have jurisdiction to review the legality of government action that might be lawful. Oh my God, inject this into my veins.

Twice. OK, you asked. I will comply. It's about the interaction. We do want to hear about it. Go. I know you don't, but I'll tell you anyway. Quickly, it's about the interaction between the Anti-Injunction Act, which prohibits suits instituted to prevent the assessment or collection of any tax, and the Administrative Procedure Act, which makes judicial review generally available. And in earlier cases, the court had said general administrative law principles apply to tax cases involving the IRS rejecting tax essentialism. So the first question is whether reporting requirements that are antecedent to tax collections fall within the

scope of the Anti-Injunction Act, like where the government is asking for information that might subsequently lead to tax collections. And the second is whether because a future penalty for violating the provision in question is discretionary, it is, in fact, a suit to enjoy in a tax, which is generally not discretionary. And the interesting Henry Hart angle is, you know, the company's subject to the guideline had this constitutional argument about whether you need a judicial remedy short of violating the law and defending against an enforcement proceeding. So Henry Hart for the win in your veins. Melissa. I just want to note that Leah teaches remedies and I've never actually seen her so happy before. She's like literally in her element. She's glowing. It's okay. I thought this was interesting because during this oral argument, there was perhaps a

little bit of a telephonic hiccup. If there were no penalties, there would be nothing for a petitioner to sue about because it arguably would not even have a article 3 standing. Unclear if it was screaming, barking, if it was on... You thought it was a dog? You thought it was a dog? I don't know if it was on Justice Kagan's line

or someone else's. We need Ashley Feinberg on the case again. It's not quite as disruptive as a flushing toilet, but I was intrigued. It got my attention. So the next case we wanted to briefly touch on is Republic of Hungary versus Simon. This case arises out of a group of Holocaust victims who sued Hungary to recover the value of property lost in Hungary during World War II. It presents two legal questions. The first is whether a district court can invoke international comedy as grounds

to abstain, that is not to decide the case, basically or largely on the grounds that plaintiffs did not first try to bring suit in Hungary on the basis of Hungarian law, but maybe just as a more general kind of discretionary abstention doctrine. The plaintiffs argue that, you know, allowing courts to invoke this kind of comedy doctrine would basically return courts to the pre-Foreign Sovereign Immunities Act world in which immunity decisions by courts were made case by case and in a pretty standardless way. They argue that if comedy might apply in some cases, it applies only where the executive branch expressly requests that a case be dismissed based on specific foreign policy concerns. And here, despite numerous opportunities to say it would be problematic from the perspective of foreign policy for a court to decide this case, the federal government has declined to do so. You know, that included in this case that international comedy-based abstention is a thing, that it does survive the enactment of the FSIA,

but then just refused to take a position as to whether abstention is appropriate in this case. Jeff, stop trying to make international comedy-based abstention happen. So at one point, the chief justice appeared to get audibly annoyed at the government for not being able to specify the alleged foreign relations implications that justify abstention. reason for international comedy. But your client, the United States, has scrupulously avoided taking a position on what the court should do, given the international relations context. This is the perfect time for you to fill that void. Why hasn't the government told the courts what the foreign relations impact on the United States is? Well, Your Honor, the United States doesn't feel that it has sufficient information about how the proceedings would unfold in Hungary to take... How long has the case been going on that you haven't gotten that information yet?

Your Honor, the case has been going on for quite some time. I forget when exactly the complaint was filed in the case. We have the same information that the court has in terms of the party presentation and the expert declarations submitted in the case. Well, I'm sure that's true, but you also have other resources like our embassies, other communications between the two countries at the executive level? That's true, Your Honor. The State Department simply doesn't feel that it has sufficient information to provide the court with a recommendation. Mr. Steiner, surely they have as much information as they need to make a decision. They just don't want to make a decision. Your Honor, they have informed us that they don't have sufficient information to make a decision about that.

Our interest in this case, though, is that more broadly, we think that the implications of the Court of Appeals decision would be detrimental to U.S. policy in as much as the Court of Appeals said that courts may never defer, may never abstain on international comity grounds. And then the second question in the case is actually the heart of a related case that the court granted and also heard. And that second question is whether a foreign sovereign's taking property of its own citizens falls within an exemption to the Foreign Sovereign Immunities Act. The FSIA says foreign governments are not immune when, quote, rights and property are taken in violation of international law. And in the related case, Federal Republic of Germany versus Philip, Germany and the United States are arguing that this exemption does not apply to so-called domestic takings, i.e. to a country's takings of its own citizens or nationals' property,

even when that taking is in violation of international law. Plaintiffs argue that it does and that the exemption applies whenever property rights are taken in violation of international law. Plaintiffs argue that it does and that the exemption applies whenever property rights are taken in violation of international law. The plaintiffs are arguing here that the taking was an act of genocide. Sarah Harrington of Goldstein Russell argued the Hungary case and was, as always, very impressive. And I think she was actually exceptionally impressive in this outing, even for her. So if you are looking for a potential SG prospect, Biden administration or deputy SG, we're not making any real recommendations, but this is kind of like a sideline recommendation. She would be fantastic.

So just wanted to highlight that. I will also highlight that this case is part of a number of different Holocaust reclamation cases that have come up before the court before. And in fact, if you're looking for something to watch during your holiday break, there's actually a movie starring Helen Mirren and Ryan Russells, which we have previously highlighted on one of our SCOTUS Goes to the Movies shows called The Woman in Gold. And it also chronicles Holocaust survivors' efforts to

reclaim a Gustav Klimt painting that was taken from her family during the Holocaust. I feel like you've pitched this movie before and I still have not seen it. Maybe this break, I will actually watch it. It's a great, it's, I mean, Helen Mirren is glorious. Always, of course. Ryan Reynolds is very attractive. Like, it's a good movie. All right. I promise to try to check it out, Melissa. And that woman from Orphan Black is in it, too.

Tatiana. Oh, I love her. She's great. Yeah, she's in it, too. She's Helen Mirren as a younger woman. I don't know if folks had predictions about how this case is likely to come out. I mean, I actually thought that Sarah was so good and the SG's weasliness was so problematic that I actually thought these plaintiffs had a very good chance of prevailing on one of their theories, maybe more likely the second. The first theory that they were pushing

is that, you know, this international comedy-based abstention is actually no longer, you know, a real doctrine post-FSIA. So even if they don't win on that theory, I can see the court finding that if this doctrine does exist, it's narrow and can only be used when the political branches in some way ask courts to abstain, and here they just haven't. So I don't know if winning on the second theory requires a remand. It seems like it probably does. But either way, I felt good about their chances coming out of the argument. The next case we wanted to preview is Collins v. Mnuchin. This is kind of a follow-on case to the Sela Law v. CFPB case from last term, in which the court held that restrictions

on the president's ability to remove the director of the Consumer Financial Protection Bureau violated the separation of powers. The CFPB was a single director agency where that director had extensive powers. And so the question here is whether restrictions on removing the director of the Federal Housing Finance Agency, which is an agency that was created in 2008 to oversee the mortgage giants Fannie Mae and Freddie Mac, also violates the separation of powers. You know, there's a second question in this case, which is what those restrictions actually are, and particularly whether there are any restrictions that apply to an acting director of the FHFA who has not been confirmed by the Senate. So the regulated party here is challenging – it's actually some shareholders of Fannie and Freddie – are challenging an agreement that was entered into by an acting director of the FHFA. So there's this question about whether the acting director was removable at will by the president or instead subject to the same removal protections that apply to the director of the FHFA. The court appointed an amicus, law professor Aaron Nielsen,

who needed to be appointed like Paul Clement did in Selah Law because the Trump administration sided with the challengers in both cases. And so Nielsen was arguing that, no, since the provision regarding acting directors doesn't mention removal limitations, unlike the provision regarding the director, and he relies in making that argument on super important work by Friend of the Pod and former guest Anne Joseph O'Connell, who has looked at this question extensively. And so Nielsen argues that there are good reasons to distinguish between actings and appointed directors for these purposes. The statute that creates the director position gives the director removal protections. The acting director, by contrast, serves by statute until the return of the director or the appointment of a successor. So it seems pretty clear textually to me that the same removal limitations that exist for the actual Senate-confirmed director don't apply to the acting director. And, you know, Nielsen has a second argument, which is basically that even if we say, okay, the acting director does have the same removal

limitations as the, you know, real Senate-confirmed director, the FHFA is still distinguishable from the CFPB because even though it's headed by a single director, it exercises far less significant powers than the CFPB, you know, and in particular doesn't exercise substantial executive powers. So, you know, presidential control and unlimited ability to remove at will are not constitutionally required. And I'll just say that while I was initially worried that this case would be kind of the next domino to fall post-free enterprise fund and say the law, basically the courts, you know, seeking to narrow the universe of independence and insulation from presidential control that is allowed under the Constitution inside the

executive branch. I actually think that's not likely in this case, you know, maybe because the facts are quirky and a little complicated and because it was an acting director who took the main action under review here. So I think this is not likely to be a big blockbuster administrative law case coming out of the argument. So I think the court is going to end up saying removal restrictions don't apply to the acting director and invoke what Kate, you and I had previously called the Ann Joseph O'Connell Doctrine or Ann Joseph O'Connell Deference Doctrine,

where the court just defers to the views of administrative law expert on actings, Ann Joseph O'Connell. Okay. Now we should, making AJOC deference a thing, I do want to make happen. I think we can make that happen. Melissa, can we make it happen? I've been trying to make a JOC deference happen since 2006. So I think the three of us together- Look, some of these projects are long-term, but change comes slowly, but I think it's happening. I mean, look at Janice. We've got four cases and we'll get it done. There we go. Might take a trilogy of sorts. We need to be patient too. Yes.

It only took five years. We can wait that long. The court also heard Facebook Inc. v. DeGreed. And the question here is another statutory interpretation question, specifically whether the Telephone Consumer Protection Act's ban on robocalling or robotexting cell phones using an automatic telephone dialing system includes using a device that can store and automatically dial telephone numbers without using a random or sequential number generator. And again, all of the justices seemed really flummoxed here by the prospect of a statute that hadn't really kept pace with technology. And it seemed, I thought, that they

were really wishing Congress had kind of stepped in to remedy this before it had even gotten to this point. But there was this really funny interchange between Justice Thomas and one of the advocates where Justice Thomas had a little bit to say about old school cell phones. Justice Sotomayor brought up the point of the ill fit between the statute from 1991 and current technology, which is advanced in 91 cell phones. Quite a few of them were the size of a loaf of bread, and they're not in widespread use. Lots of people had car phones instead installed in their cars. We've had in legislation quite a change.

The industry's changed. The technology is far beyond anything we could have conceived of in 91. So I thought this was notable. He's taken it all the way back to 1991 when the statute was enacted and when I think he joined the court. Was it 19? Yeah, I think it was 1991. And he notes that cell phones or quite a few of them were the size of a loaf of bread. And I can confirm that that is exactly the case.

You could get a cell phone. It came in its own suitcase and you carried it around in your car in its suitcase. Like you kids have no idea the kind of. No, as a fellow older worker, I definitely remember that. Me, you and J-Lo both had our own briefcases. Oh, I didn't have one, but I knew people who did. Who had a cell phone back in 1991? I mean, I thought you actually had... No, no, no. Like a car phone in the mid nineties. I feel like I remember those. Did you have a car phone in the late nineties? No. Okay. Like I felt like really rich people, like moguls had car phones. I think I knew people who had them though. Like I felt like really rich people, like moguls had car phones. Like I think I knew people who had them though.

Like I feel like I did. I knew one person that had a cell phone and it actually was carried around in a suitcase, which is how I knew that. But it like plugged into the like cigarette lighter. Yes. Yeah. And it burned your whole battery down. Like, I mean, it took the whole battery to power the cell phone.

Oh my God. Yes. Okay. Leah, the grandmas are telling you the story power the cell phone. Oh, my God. Yes. Okay. Leah, the grandmas are telling you the story of the cell phone, the car phones of our youth. Back in the good old days when you had to walk uphill to school. Exactly. Both there and back. And cell phones and bags.

Yep. Justice Sotomayor also talked technology a little bit. I think you're going to have to answer me more clearly than that. You don't think that cell phone users will do what? They won't do automated mass dialing or blitz messaging, which isn't a normal function on a cell phone. Well, I mean, I do email blasts with friends. I do all sorts of now with FaceTime and things of that nature, Zoom, we're doing basically automatic dialing and people being joined together by that process. Question that arose for me is how do I get on Justice Sotomayor's email blast?

Curious minds would like to know. I suspect Melissa is already on them, although I don't think she's going to tell us if she is. She's just been conspicuously silent. Her face is giving nothing away. We'll just draw what inference is. We will. I'm not on the email blast.

The court also heard once again the case of Shine versus Archer and White's sales. The question here is whether a provision in an arbitration agreement that says certain kinds of claims are not arbitrable means that an arbitrator should not decide those threshold questions about whether a claim is subject to arbitration the case also involves a question of whether incorporating the triple a rules on arbitrability evince a clear and unmistakable intention to delegate questions

of arbitrability to an arbitrator the court had previously heard this case and ruled that there was no wholly groundless exception to arbitration. That is, where a claim to arbitration is wholly groundless, it can still be decided by an arbitrator and does not have to be decided by a court. We got through a lot. We got the first opinions of the term, so we thought we should at least briefly touch on them. Should we just do like a sentence or two? Yeah, lightning round. Cool. In Rutledge v. Pharmaceutical Care Management Association, this is the first opinion in an argued case unanimous by Justice Sotomayor.

And it came in an email blast. It did not come in an email blast. The court held that ERISA, the Employee Retirement Income Security Act, does not preempt a state law that establishes price floors that pharmacy benefit managers must abide by. Boom. There was also an opinion in United States v. Briggs. This was a case that we also previewed. This was the one about the statute of limitations for rape prosecutions under the Uniform Code of Military Justice for conduct that occurred between 1986 and 2006. The UCMJ states that there is no statute of limitations for crimes punishable by death, and the court held that this language referred not to the Constitution but to the UCMJ itself, which had, during the relevant time period, stated that rape

could be punished by death. This was a unanimous opinion with Justice Alito writing, and we should note that this was a womp womp for our friend Steve Fladdock. So sorry, Steve. I was surprised this one was unanimous, honestly, after the argument. Yeah. Whatever. And Steve was great. I think we said this. He was great. He did a great job. You was robbed, Steve. Robbed, I say. Okay, next case, Tanzan v. Tanvir. This is another unanimous ruling, this one by Justice Thomas.

The court held that money damages are available against federal officials acting in their personal capacity when those officials violate the Religious Freedom Restoration Act, or RFRA. This is the case involving three Muslim men who say they were put on the no-fly list after they refused to become FBI informants. This was one of the ones that we had some questions about in the preview where we weren't sure if the court's commitment to religious liberty might extend to these particular circumstances. So I thought this was like a sort of happy surprise. I was glad to see them being consistent on this. I was also happy, though it does create an oddity that you can get damages against federal officials under RFRA, but not against states for violations of ARLUPA.

And of course, as the court appears greatly poised to expand the scope of RFRA, and particularly to say it violates RFRA for federal officials to enforce anti-discrimination norms, there are also concerns about the reach of the opinion, though I still think it is right. Yeah. As to these particular parties, this does seem clearly right. Yeah. There was also an opinion in an original jurisdiction case involving Texas. This one was not about an attempted coup, but rather a water dispute between Texas and New Mexico. And the court, per Justice Kavanaugh, held that the river master, and this is an important note here, in these original jurisdiction cases, the court often appoints a special

master to go and investigate because under the court's original jurisdiction, it's actually functioning as a trial court. So the special master is actually doing fact-finding here. So there was a river master appointed, and the river master recommended that New Mexico get credit for the water that it had stored for Texas, but that had later evaporated. And the court, under the opinion written by Justice Kavanaugh, affirmed that recommendation. Justice Alito dissented. And Kate, you wanted to note some of the race and gender dynamics around the appointment of the river master. Well, only because original jurisdiction cases are just like for a brief moment on people's radar.

Like, it seems worth noting, a couple of years ago, I took a look at the Supreme Court's amicus invitations. I've talked about it on the podcast before. And when I started the project, I thought I would also look at the court special master appointments because, you know, there's no formal guidance as to how the court selects these special masters. It's like a, you know, it's a fairly lucrative because you bill the court for your time and certainly prestigious kind of chit that the court hands out. And it turns out the appointment of special masters and river masters is kind of just as cronyist and kind of elite, kind of clubby. Are you telling me that there's never been a black woman as river master, Kate?

Is that what you're saying? I haven't updated my research in a few years. But I feel like if there had been one in the last couple of years, we would know that fact. And we don't. So, no. These special masters are not necessarily the same profile as these amicus invitations, which are, you know, primarily, you know, recent white male, you know, SCOTUS clerks. Like, that is their type for amicus invitations, not exclusively, but very predominantly. Special masters are a little bit different.

They tend to be practitioners who have some specialization in, like, water and… Riparian rites. Yeah, so riparian experts or kind of boundary dispute issues. It's pretty specialized. Riparian rights. As to the gender data, I remember that 2008 was the first time the Supreme Court had ever appointed a female special master. It was Kristen Miles, a Munger Tolles lawyer. I think she may still be the only one, although they may have. And they've done this hundreds of times. You know, these appointments are these kind of valuable resources that the court hands out, and it can do better on kind of diversifying the people around it, right? It's the law clerks, the lawyers who argue in front of it, and the special master and river masters that it appoints.

I love that we've actually had a Black woman become vice president before becoming river master. What in the world? Okay. Any other opinions we want to highlight? I think there's one more. Yeah. So briefly, we wanted to mention Carney v. Adams, which was a challenge to the Delaware constitutional provision requiring that appointments to the state's major courts reflect partisan balance. And the Supreme Court held that the challenger lacked standing because he was not able and ready to apply for a judgeship on one of the Delaware courts subject to the partisan balance requirements. So Justice Breyer wrote for a unanimous court. I'll say it seemed pretty clear to me that this provision of Delaware law requiring partisan balance would stand after the oral arguments, although I couldn't tell whether

the case would be disposed of on standing or merits grounds. The court took the standing route. Leah, what did you think of the opinion? I didn't love it. Justice Breyer tried to cabinet saying the decision was highly fact specific. They relied on the ambiguities in the challenger's statements that he was interested and also his failure to apply to judicial openings while a registered Democrat. And the court also noted the timing in ways that seemed to insinuate that he had become an independent and reactivated his bar status in order to bring this challenge. But I just worry that the case could cause real mischief given that it was decided at summary judgment. And so all of the inferences were supposed to be drawn against the

moving party here at the state. And here the court just seemed to say, well, on our interpretation of the evidence, we just don't think that this plaintiff is seriously injured. You know, maybe sort of bearing out your concern, I think the court did cite Carney v. Adams in the census case, right? Yeah. It's already being deployed for problematic purposes. All right, we made it through all the opinions. And for our court culture segment, more opinions. Right, because we have some summary reversals.

I wanted to note one summary reversal in Shin v. Kayer. This is a Supreme Court summary reversal where the decision reversed a lower court ruling without full briefing and argument, concluding that the Ninth Circuit was wrong to find that the defendant received ineffective assistance of counsel for failing to investigate at the sentencing stage of the proceeding. The defendant was sentenced to death. Justice Breyer, Justice Kagan, and Justice Sotomayor noted their dissents. I thought the opinion was significant because it indicates something that the 6-3 conservative court will be able to do, like a new power that it has, which is it will find it much easier to summarily reverse lower court decisions than a 5-4 conservative court.

By custom, summary reversals require six votes. Summary reversals are, again, cases decided without argument, just on the briefs. So previously, the court's conservatives would have had to find a sixth vote from a more liberal justice. Now that's no longer necessary. And I think this will operate to the further detriment of habeas petitioners, civil rights plaintiffs, and litigants hoping not to be forced to arbitrate their claims. The court also continued to deny requests for relief or stays from defendants who've been sentenced to death, including federal defendants who are still being executed in these

waning days of the lame duck Trump administration. There is every reason to think that perhaps Joe Biden as president will reinstate the moratorium on federal executions. But again, the idea that there are continued executions during this again, the idea that there are continued executions during this lame duck period is really unprecedented. And one of the executions that occurred that really garnered a lot of outsized attention was the execution of Brandon Bernard, who was 18 at the time of the crime for which he was convicted. And he was known to have a limited role in this particular crime. It was a carjacking and murder. And so there was a lot of outcry about this particular execution. Also of note, the court also vacated lower court decisions upholding coronavirus restrictions

against religious liberty challenges in Colorado, California, and New Jersey. Then in a super curious order, it left in place a Sixth Circuit decision upholding the Kentucky governor's school closure restrictions. A religious school had challenged them in the unsigned order. The court basically said the order was about to expire and the school term ending. And Justice Alito and Justice Gorsuch noted their dissents. I just also wanted to call attention to one of the briefs filed in this case. This was filed on behalf of Kentucky Governor Andy Beshear, and it was filed by Joshua Matz of Kaplan-Hecker Fink. And this was just an incredibly meticulous, detailed, fact-specific brief. I think they actually cited more press releases from the governor's office than they did actual cases. And they didn't cite Jacobson at all. So I think we

can query whether Jacobson versus Massachusetts is officially dead on arrival. But this may be a template for future challenges for states to really, again, focus on the facts and laying out the specific circumstances that they undertook in making these decisions about whether to close or reopen. Although Alito does say like, please, please come back. You know, all this does is defer the decision. Like, our doors are wide open if you guys want to come back. If it turns out the governor doesn't reopen schools after the holidays. So this has been a long one. It's probably all we have time for. Thank you all for listening.

Special thanks to our GLOW supporters who make the show possible. You can sign up to support the show at GL.fm forward slash strict scrutiny, or rate us on iTunes if you enjoy the show. Thank you to our producer, Melody Rowell, and thanks to Eddie Cooper for making our music. We'll see you next time. Thanks, everybody. Thanks.