Strict Scrutiny - Not Afraid of Garland

Episode Date: December 16, 2019

Melissa and Jaime deck the halls with argument recaps, cert grants, and opinions-- plus some speculation about upcoming wardrobe choices for Chief Justice Roberts. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back. This is Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. And once again, we are a podcast that's so fierce, it is fatal. In fact, I'm Melissa Murray from NYU Law, and joining me today is...

Jamie Santos from Goodwin. I am really excited to see you, Melissa. I know. This is our first time going solo. So as you might guess, dear listener, Kate and Leah are out for the day. So it's just me and Jamie, and we are feeling incredible pressure to keep the energy going, keep it high. I think we're not going to have a problem with energy. We're pretty high energy. Yeah, we're pretty high energy folks. But I will say I thought that Kate and Leah's episode was really fun to listen to. So I hope that we do justice to what they covered last time. Okay, I think we will. We've got a lot of really great stuff to cover. There's been a lot of interesting things happening at the court that we have to talk about. So our format will pretty much follow the ordinary course of events. We'll cover some breaking news

and non-merits docket updates. And then we'll do a recap of the December arguments and then discuss some of the new CERT grants and opinions. Opinions! We just got opinions. Dun-dun-dun-dun! We just got some opinions so we can talk about that. And we'll finish everything off with a little holiday court culture. Excellent.

So a big development, I think, is that, as we've talked about before, the SG has filed a lot of motions for stay. This particular SG, Steve Vladek has a law review article that talks about how the SG has filed 20 times more motions for a stay of lower court decisions than past SGs. And someone actually successfully blocked the SG from obtaining one of those stays. So this is a case called Barr v. Roan. It involves the resumption of federal executions that were supposed to start this week. Basically, just to give a quick summary, although there are many, a number of federal defendants on death row, no executions have taken place in more than a decade because the government was reviewing its execution protocol pursuant to recent legislation. And basically the legislation required federal executions to be implemented in a manner prescribed by state law. And so in July, the Bureau of Prisons issued new guidance that said we're going to create a federal execution protocol and said, and we're going to start this right away. Basically, executions were supposed to start this right away. Basically, executions were

supposed to start this week, and there were supposed to be five within a month. And there were a group of respondents who challenged the execution protocol. And they are represented by Kate Stetson, who is a fabulous appellate advocate and the co-chair of Hogan's Appellate Group. And the district court granted a motion for a preliminary injunction, and the D.C. Circuit actually denied a stay. And I should note that the D.C. Circuit was a not particularly liberal-leaning panel. So it was Judges Griffith, Judge Rao, who's one of the newer appointees, and Judge Rogers. And when that happened, the SG filed a motion for a stay in the Supreme Court and the Supreme Court denied it. Wow. It's a pretty big development. Basically, the court said, listen, the D.C. Circuit can take care of this and we assume they're going to do so

with appropriate dispatch. Get on it. Basically, the TLDR get crack in court of appeals. That's a really big development. Yes. That's one of the very few state denials. So well done, Kate Stetson. And we'll see what happens in the D.C. circuit. There's a number of kind of technical challenges to the executive action. So I think it'll be more interesting kind of classic ad law issues.

But we'll see. We'll follow the case as it goes up. Not as exciting as ERISA, but we'll see. We'll follow the case as it goes up. Not as exciting as ERISA, but pretty exciting enough. Well, and certainly more consequential because it deals with, you know, people, people's lives and execution. I mean, actual people's lives. Yes. Yes. No. So that's a really important development. Some other interesting developments. There's nothing happening in D.C. right now, so I don't think there's anything you have to talk about. D.C. is pretty sleepy. Everything kind of shuts down around the holidays. Nothing big happens, except on Friday, the 13th

of December, the Judiciary Committee voted out its articles of impeachment, which means that now those articles will be headed to the full House of Representatives for a simple majority vote, which I think is likely to happen, which means that Chief Justice Roberts is going to get his sartorial flex on because he is going to be the Chief Justice of the United States that has to preside over the impeachment trial of a sitting president. The last Chief Justice to do so, of course, was William Rehnquist, who did it with incredible flair, with a beautiful robe bedecked with four gold bars on each sleeve. And that really does lay down the gauntlet for Chief Justice Roberts to come out with his own sartorial flex.

So I am waiting with bated breath to see what he will bring to the proceedings. I have a feeling that you're going to be waiting and disappointed about the chief's fashion sense. So, you know, his role there will be really case management. It will be ruling on evidentiary objections. When do you think is the last time the chief justice of the United States thought about evidentiary rules? I'm thinking law school. He was an appellate litigator for much of his career, so not a trial lawyer, probably not a ton of time breaking out the FRE and flipping through it. But he's going to have to do a little bit of that.

Although I will say, interestingly, he is in a very different position than your average district court judge because his decisions can actually be overruled by a simple majority of the senators. So he's probably not used to that either. Yeah, I imagine that district judges would not really like rules set up where the jury could overrule their decisions on evidentiary rules. Seems a little incongruent, but yes. You don't think he could bring just a little bit? I would like to see like maybe a festive jacquard or something. So I was thinking, you know how when Justice Breyer goes to like I think maybe the State of the Union, he has this little beret. And he wears that hat, that little tan. Yes. I was thinking maybe the chief could borrow that from Justice Breyer.

I bet Justice Breyer would lend it to him for sure. It is a very specific look for Justice Breyer. It is such a Breyer look. It's a very Breyer look. A look, L-E-W-K. That's exactly what it is. So yes, I'm looking forward to that. So a lot going on in D.C. and we will, of course, keep our eyes peeled for any glimmers of flair, fashion, or otherwise from the Chief Justice as he takes a seat to preside over what will be only the third

impeachment trial of a sitting president. All right. Well, let's jump into arguments because there was a whole group of December arguments and several of them are really interesting. So we're going to recap some of those today. Melissa, do you want to start with the Second Amendment case that Leah and Kate talked a little bit about last time? Right. And this is, I mean, if you were asking Santa for a really excellent December sitting case, this would have been the one. Slip a gun rights case under the tree for me. No one will notice it at all. No one will notice it. This was a huge case. As Leah and Kate discussed in a prior episode, this was a case that was eagerly watched on both sides, on those who favor gun control, those who favor more expansive gun rights.

And the case concerns a New York City gun licensing scheme. So let me sort of briefly lay it out for those who didn't hear it in the prior episode. But the scheme basically prohibited gun owners in New York City from transporting their licensed handguns outside of the city, including to shooting ranges and second homes. And that last bit is how you know it's a New York City case, because I am from California, where not a lot of people had second homes. But here in New York City, I think everybody has a second home. My kids came home and asked us the other day, are we going to get a second house? And I was like, what are you smoking? Like what are you like?

No. And one thing that was interesting about that particular law, it was a premises license. So there's a whole different possession license. But this was a premises license. And there were some points in the argument that talked about that difference. Basically, in a premises license, can you prevent people from – when the license allows people to use – to transport to gun ranges within the city, I think, you just couldn't do so outside the city and to other locations. Right. So you could take it to any of the shooting ranges. I think there were seven maybe within New York City. And New York City, of course, is all of the boroughs.

So it is a quite significant range. But you couldn't take it outside. And there are, of course, a lot of shooting ranges outside of New York City and Westchester County and the like where many people have their second homes. So this was incredibly important, all of it. So no one disputes that the ban was one of the most restrictive gun laws in the country. And it was immediately challenged by the New York State and Rifle and Pistol Association, which is an affiliate of the National Rifle Association. And in their initial complaint, the plaintiffs argued that the ban violated the Second Amendment, the Dormant Commerce Clause, and the right to travel.

They were unsuccessful at both the district court, which heard the case in 2015, and the Second Circuit, which also upheld the law in a 2018 decision. They, of course, petitioned the court for Soshiawari, which the court granted in January of 2019. So that sets the stage for what will be the first major gun-related case to be heard by the Supreme Court since District of Columbia v. Heller, which is a 2008 case, and McDonald v. City of Chicago, which it heard in 2010. Now, Melissa, quick question. Is there anything that happened, anything consequential that happened between the time the Second Circuit decision came out and the time the court graded cert? Jamie, you've read my mind. So let me back up a little. This case is widely expected when they petition for cert to be the Supreme Court's first step toward establishing a constitutional right to be able to carry a gun in public, which is to say that when the court granted cert in this case in January of 2019, it was expected that it would take the first step toward allowing individuals to bear arms outside of the home and in the streets, and this would lay the groundwork for a more expansive interpretation of the Second

Amendment that would allow you to transport and hold a gun more freely in public. The problem, of course, is in that intervening time between the Second Circuit's decision in 2018 and 2019, there is a major personnel change on the court. So Justice Kennedy, who was a Second Amendment moderate on the court, was replaced in 2018 by Justice Kavanaugh, who we don't have a lot of discussion about his gun rights views, but we do know that he did dissent from a D.C. Circuit case upholding gun restrictions and is considered generally to be more conservative on Second Amendment issues. So it was assumed that the replacement of Justice Kennedy with Justice Kavanaugh portended a crucial fifth vote for a more maximalist view of the Second Amendment. And I'm not sure if it's relevant to what happened

next, but I will say only that by the end of June of 2019, New York City had decided to take a second look at its gun control ordinance and to finally repeal it to allow gun holders to transport their weapons in a safe manner to homes or shooting ranges outside of the city. So it's basically a repeal of the offending law. And if that wasn't enough, when the change went into effect on July 21st, it was not the only change that had been done. A few days earlier, New York's governor, Andrew Cuomo, had signed a bill that changed the state law to allow licensed gun owners to transport their handguns to other places, again, second homes, shooting ranges, shooting competitions, where they would be legally allowed to have them. So two major legislative changes that seem to hollow out this challenge. And so, again, one thing that seemed obvious to many was that

the challenge ordinance was too restrictive, likely too restrictive to survive SCOTUS review. And so the question is now that the challenge ordinance is no longer in play because it's been repealed by the city and then superseded by this other state statute, whether the justices can even hear it at all. Right. And so Leah and Kate in the last episode didn't even want to talk about the merits of this case. All they wanted to talk about was mootness and only begrudgingly said, OK, fine, we'll spend a minute on the merits. And I will say that is basically how the argument went. Almost the entire argument was about mootness. And the petitioners and the government, the government was supporting the petitioners here.

Several times their counsel tried to say, OK, let me talk about the merits now. And they were just shut down in numerous instances. There was not a lot of discussion about the merits. Well, so can we come back for a little bit? So I want to say, if you want to talk about the merits for just a little bit, I won't belabor this, but I think one of the questions on the merits was whether the court, if it heard this case on the merits, would issue a sort of narrow ruling that only addressed the constitutionality that second option more likely, a more maximalist opinion with a fifth vote to uphold or a more expansive vision of the Second Amendment.

And then, of course, we're not even really talking about that. The justices aren't really talking about whether to go narrow or go broader. The whole argument is focused on whether this case can even be heard at all, because the law no longer exists. Right. And I will say in civil rights legislation generally, it is pretty common for this to happen. You bring a challenge, you know, you bring a challenge to an anti-panhandling ordinance.

You litigate the challenge. And then when the city kind of sees maybe it waits till it gets a couple rulings or it gets scared because you have really good counsel or something like that. Then the city sometimes or the county or the state will repeal the law or change the law. And then you cannot challenge the law. You can challenge the new law, but you can't keep challenging a law that doesn't exist. And I found several of the arguments – Wait.

For Amakan law peeps, what is that? What doctrine is that? That is the doctrine of mootness, which is kind of implied from Article 3, the Article 3 standing requirement. And Article 3 requires that any case that's heard by an Article 3 court, federal judiciary, has to have and has to present a live case or controversy. We cannot decide hypothetical matters. We cannot decide matters that are not yet ripe for review. And we can't decide matters that have already effectively been decided because the law no longer exists. Yes. And so that's, I mean, that is all super settled precedent. And so I want to talk a little bit about some of the arguments that were being made because I found some of them

pretty striking. And we should say that the petitioners were represented by Paul Clement, I think, in his 99th Supreme Court. No, 50-11 million. I think it actually was literally his 99th. I think I read in the paper. Well, it was so funny. I was listening to these over like a speaker in our living room while I was cooking dinner. And my husband comes in and goes, that guy, he sounds like he's been there before. He's really comfortable.

And I'm like, yeah, that would be Paul Clement. Yes, yes. He's really comfortable. And I'm like, yeah, that would be Paul Clement. He's really comfortable. So he was, I mean, he was making some pretty, some pretty interesting arguments. So one of the arguments that he made was that, okay, fine, the law doesn't exist anymore. But if the law had still existed, and we won our case, then maybe we could have gotten an injunction that would have been even better than just the law not existing anymore. I also think that Justice Sotomayor and Paul Clement had a really interesting discussion where Justice Sotomayor doesn't say it precisely. But she seems to be teasing out not just that this is counterfactual on counterfactual, but actually that this is really just Paul Clement looking for a little jurisprudential guidance more generally. And she seems to be suggesting that what he's asking for is not a decision, but an advisory opinion.

And you're asking us to opine on a law that's not on the books anymore. And one that's not on the books, not because of something necessarily the city did, but because the state, a party who's not a party to this litigation, has changed the law and prohibited them from doing. So this is, I think, something quite different. You're asking us to opine on an old law, not the new law. And the new law hasn't been reviewed below yet.

So, again, Justice Sotomayor, I really think what we're asking to do is exactly analogous to what was before this court in Knox. In Knox, the thrust of the underlying complaint was that the supplemental fee assessment that the union imposed on the members was unconstitutional. That's what the complaint framed. But you've got what you want now. So that was a pretty lively exchange between Justice Sotomayor and Paul Clement. So then there was another really interesting exchange with Justice Alito. So it wasn't just Paul Clement making these kind of arguments about what I thought were kind of extreme arguments about mootness. Justice Alito made the point that what they sought was a declaration that the prior law

was unconstitutional. And they didn't get a declaration. So they didn't get everything they wanted. Because they didn't get all that they wanted. They wanted a declaration that the old law was unconstitutional, period. And what they have obtained as a result of the new city ordinance and the new state law is a rule that says, yes, you can take the firearm to a firing range outside of New York City, but it must be a direct trip. It can include an hour spent with your mother. So I thought Justice Alito's point was actually very much related to Justice Sotomayor's earlier

point that we just played. And she was basically saying, you want an advisory opinion about whether or not that old law was actually constitutional, which we can't do, both because it's an old law and it's no longer existing, and to do so would be to issue an advisory opinion, which we categorically cannot do. And then Justice Alito comes in and says, no, they have a live case or controversy because they didn't get exactly what they wanted, because what they actually wanted was this broad declaration of what the Second Amendment means and whether it applies here to limit the state's opportunity to restrict gun rights. Right. And so that to me is so radical because, listen,

you are challenging a law. You're not just challenging the, you're not engaging in a Second Amendment scholarly analysis. You're challenging a law. That law doesn't exist anymore. The fact that you'd prefer a different law doesn't make your case any less moot. It means that you can challenge the new law. So Paul Clement had pointed out, well, this new law has some things that are problematic too. That's fine. Then challenge the new law. But it doesn't mean you can – it keeps the challenge to the old law alive.

So can we talk about why that isn't on the table? Like why isn't this all about, OK, this law has been repealed. There's a new law in place that we also find offensive. Let's challenge that. said is we are a court of review. We are not a court of first view. So the Supreme Court is not going to look in the first instance at the constitutionality of a law that no lower courts have weighed in on. That's what you would need factual development for. They don't like doing that the first time. They like to look at it. It's the partner you work with that likes to edit other people's work and doesn't want to do the first draft, right? That's the Supreme Court. They don't like to take the first look at a law, and they shouldn't. That's not a good use of their resources. Under Article III, they are a court of limited review. And again, there are limits on their

jurisdiction. But it also raises the other point. like they could actually file a case in any in the Southern District of New York and one of the district courts in New York challenge with such fervor is because if what you seek is a maximalist interpretation of the Second Amendment, the old law is actually the best one because it's so restrictive that it actually gives the court a lot of room to be able to talk about what the Second Amendment prohibits the states from doing. The new law is much more cabined, right? Yes. And probably does not give you the same amount of latitude in being able to enunciate a more robust vision of the Second Amendment. Like, it requires you to be more incremental, I think, in the development. I think that's totally right. In any event, one of the things I want to highlight for the students who are listening, especially students of constitutional law, and I will say I'm so excited to teach this case next semester in constitutional law because I think it's actually fantastic.

Not only does it really present these mootness questions really in a clear and concise way, it also raises the questions about exceptions to the mootness doctrine. And there are a number of exceptions. And the relevant one here is the voluntary cessation exception. And under that exception to the mootness doctrine, a defendant who is acting wrongfully but then stops engaging in the offending conduct once litigation has been threatened will not necessarily get the benefit of having the case declared moot. And in a case called Laidlaw, which I believe Justice Ginsburg wrote, she explained that the idea behind not mooting a case in such a circumstance was that it allows the opportunistic offender to stop doing the offending conduct just long enough to avoid judicial review, but then they are then subsequently

able to resume the offense of conduct. When for that reason, in Laidlaw, she notes that in order to moot a case by voluntarily stopping the offense of conduct, there is a very high standard for the defendant to meet. You have to essentially be absolutely clear that the wrongful behavior would not be reasonably expected to recur once the case has been mooted. And New York City argues here that that's exactly what has happened, that they are not going to reinstate this law. They have been very clear that they're not going to reinstate the law. They are not going to

prosecute anyone for past violations of the law. And more importantly, New York State has prohibiting them from banning similar, from banning the transport of licensed handguns in this way. And New York State is not going to repeal its laws that allows handgun owners from transporting their guns lawfully. So New York's... What I see most often, this kind of laid law exception, is when, first of all, when they're a private party, so not a government entity, and you have one private party saying, well, I stopped doing it. You don't know. They might do it again. Usually courts assume that when the government says it stops doing something, it's going to mean it. And certainly, at least where you have the actual law was repealed, it seems like the strongest case for mootness.

In situations where I've seen where a state government says, yeah, that law's on the books, but we're not going to enforce it. I know we did that one time, but that was just a police officer who kind of was going off and doing his own thing. We're not going to enforce it in the future, but they don't repeal the law. That might be a more convincing case. But here, the law is gone. It cannot be enforced because it does not exist anymore. It's kind of an existential crisis for the court. I mean, I don't want to make too much of this or be hyperbolic about it, but I think this case really presents a true problem for someone like Chief Justice Roberts, who has been such a careful steward of the court's reputation, of its institutional standing. And I mean, again, whatever you think about the merits here, it clearly presents some

jurisdictional problems. And I think it really presents the question of whether the chief justice can actually restrain his four conservative colleagues, one of whom, Justice Thomas, I think, who is a Second Amendment maximalist, who has been eagerly awaiting the opportunity to expound upon a more robust understanding of the Second Amendment. If you'll recall, a couple of terms ago, he wrote a very impassioned dissent from a denial of cert in a case called Sylvester v. Becerra. It was a California case about California's gun law. And I think, again, this case would – on the old law would have presented the best opportunity to have that kind of really robust discussion about what the Second Amendment means without that old law. I don't know if you get that far and I think that's why we're having this discussion.

Yeah. I mean I will say I don't think that the chief is going to have to do a lot of reining in here. I was counting two potential votes for saying this was not moot, Justice Gorsuch and Justice Alito. Justice Thomas was silent, but that's still only three. I just don't see a road to five. What I would predict is a strong, you know, a strong dissent by either Justice Gorsuch or Justice Alito. It'll be Justice Thomas.

No, no, I actually think Justice Thomas might do a concurrence and say, this is exactly what I'm talking about. This is all the problems we have, but still saying that it's moot. So I might expect to see a dismiss for mootness or holding that it's moot and then a concurrence and a dissent, but we'll have to see.

Well, I do think that this case really presents the chief and the court with, if you're going to walk the walk, you got to talk the talk too. And, you know, here, this is obviously a politically fraught issue, but the actual issue is much cleaner and less politically fraught than the question of gun rights versus gun control. Like you cannot profess a commitment to judicial modesty and restraint and then go and decide the merits of this case where— That don't exist, you know, the merits of a law, the constitutionality of a law that does not exist. Where the democratic process has actually resolved the underlying issue. You can't

talk about limited government and then go and decide this case. Yes. So we shall see. All right. So let's go on to the next case that we're going to talk about, which is a habeas case called Bannister versus Davis. And I like this case because I like Fed courts issues. And this is kind of goes to the intersection of civil procedure and EDPA. And I should say EDPA. I'm going to define it really quick.

It's the Anti-Terrorism and Effective Death Penalty Act of 1996. And it was basically this law that Congress enacted to make everything really, really difficult for criminal defendants whose convictions were final. And it would make it very difficult for them to challenge their convictions or their sentences after they were final. So it put up all these procedural blocks, especially for death penalty cases. But that's what this case is about, the kind of intersection between those two things. So one of the things that EDPA did is it created a standard for what's called second or successive habeas petitions, which means if you've already lost one habeas petition and you file a second one, it's going to be basically impossible for you to win that second one. So the question in some of these cases is, was what you filed a second or successive habeas petition or was it something else? And so this case is about whether it was something else. And so just to do a little

kind of scene setting, in 2005, the court held that motions filed under Rule 60B of the Federal Rules of Civil Procedure, and I'll define that in a second. It said that if those motions are similar enough to a habeas application, then we're going to count them as a second or successive petition. And what Rule 60B does is it basically allows litigants to ask the court to relieve them from a prior final judgment for particular instances. So say, for example, there was newly discovered evidence or there was some type of excusable neglect. You missed a deadline because your counsel died or something like that. Then you can ask for relief from a judgment. And these Rule 60B motions have no

time limit. So you can literally file one four years after the case ended. And theoretically, you could get relief under Rule 60B. And what the court said is when you're doing that, we're going to count this as a second or successive petition and make it impossible for you to prevail on it. And so what Bannister was about was whether a different but similar motion filed under Rule 59E, which is basically a motion for reconsideration. If you file a motion for reconsideration under Rule 59E, are we going to say that is like that Rule 60B motion and we're going to say it's a second or successive petition, or is it something different? And what the petitioner says is it's something different. A Rule 59E motion has to be

filed within 28 days of the judgment. It's basically meant to kind of correct obvious errors, whether it's factual or legal, so the district court can correct the issue rather than sending everything up on appeal if it's something that could easily be corrected below. And so what the petitioner says is we have a bright line rule. At the end of that 28-day mark, then anything filed afterwards is a second or successive petition. The state of Texas said no. The state of Texas said the moment a judgment is issued, the moment a district judge rules on a habeas petition, that's it. And if you

file a motion for reconsideration, then that becomes a second or successive petition and you're never going to win on it. And they basically made this argument that this is more efficient because otherwise, habeas petitioners will have all this incentive to try to milk more time for their appeal by filing a Rule 59e motion and it's going to clog up the courts and it's going to be madness. Don't mess with Texas. Don't mess with Texas. Is Texas supported by any other parties? Have other states weighed in, other governments? So the U.S. government, the Solicitor General, supported, generally supported Texas in this case, Texas's side.

And I thought it was a really interesting argument because you've got three first-time Supreme Court advocates. Yes. And three former clerks. That is actually really interesting. So three first times. We've talked on past episodes about how important it is for new advocates to get an opportunity. Like you're not going to be able to build up a practice if you haven't had at least one outing in this area. So it's great that this was a situation where the playing field is relatively level and all three of these individuals got a chance to argue a case before the court. So who were they? The three advocates are Brian Burgess, who is a Sotomayor clerk, who is an attorney at Goodwin, my firm. And I will say I did not work on the case at all, not even to moot Brian. Ben

Snyder, who is a former chief clerk, who's now at the SG's office. He started at the SG's office about two months ago, and this was his first argument. And then Kyle Hawkins, who is an Alito clerk, who is now the Solicitor General of Texas. And one of the things, I don't know if this also, if you like these kind of arguments too, Melissa, but there's some arguments that are really nerdy and doctrinal. And there's other arguments where really they're just kind of battling about practical consequences of the various rules that they're offering. And this was one of the latter arguments. And it's really fun because you get some great Breyer moments. And Justice Gorsuch can also be a pragmatist as well as Justice Kavanaugh. So I think it was that type of argument. Texas said that a rule allowing these Rule 59E motions to be considered Rule 59E motions

and not second or successive petitions would clog up the courts and cause mayhem and be really inefficient. Bryant said, no, no, you have that wrong. What your rule would do is it would mean that every time a district court makes a little error, the district court can't fix it. It always has to go up to the court of appeals. That basically results in unnecessary appeals. And so I'm sure that drew the justices' attention because they hate nothing more than judicial waste. Yes, exactly. So here is Ryan's point on that. We think the way that the rule operates and the fact that the motions

have to be filed within 28 days to a judge who has just ruled on the merits of the proceeding. The judge is going to be able to quickly determine whether there is anything new here, whether there's any there there to the complaint that he or she made a significant mistake. In this case, the judge acted on Mr. Bannister's Rule 59 motion within five days before the state was even required to respond. So we don't think there was any burden. And you're exactly right. The justices did generally seem very favorable, favorably disposed towards this point of view. And when the Texas SG went up after Brian had made his argument, there was a lot of pushback. And there was this funny exchange with several of the justices that started with Justice Ginsburg,

who said, kind of picking up on what Brian had just said, she said, what are you talking about? This will be really burdensome for district courts. The judge took just five days to rule on this motion. It obviously didn't cause much of a problem. You've got a district judge who just ruled on a habeas petition. Why is it that big of a deal? And here was Texas's response. And in this case, Justice Ginsburg, it's true that the district court was able to dispose of that relatively quickly. But it's worth noting that Bannister's original motions practice in district court totaled almost 1,000 pages of material, much of which was stylized as a stage play complete with stage directions.

If he'd simply refiled that 1,000 pages worth of material stylized as a Rule 59E motion, it likely would have taken the district court much longer to go through that and figure out whether there's any... Or it might have taken the district court no time at all. I mean, you file a stylized play, 1,000 pages of a stylized play, twice. I would think the second time around the district court might be righteously indignant and have very little trouble denying that. And isn't that, I mean, if you want to talk about equities and efficiencies, I would appreciate some response to the argument that we've already heard and you're well aware of, that this is more efficient than allowing the Court

of Appeals, forcing the Court of Appeals to have to, you bounce it upstairs, you're asking the district court judge, instead of ruling on what he well knows to be a very overlong and bad play for a second time, sending it to the Court of Appeals to decide what to do with. And the Court of Appeals then has to decide whether it's a true Rule 59 or a fake one, I suppose. And that in the 60B context has proven to be a not inconsiderable burden. Don't mess with Texas. What's really interesting about this is that there aren't a lot of members of the court who've actually had real experience doing this kind of work at the

district court level. Only one justice has actually done this, and that is Justice Sotomayor. And she had some things to say, too. I mean, I can't rely on my personal experience, but mine was not different than what happened in this case. Very quick that they were decisions. But do you have any proof that there's actually an abuse of 59E so that it extends the appeal time inordinately? And so I love that. I think it's really, and that's one of the reasons why it's so important to have some diversity of experiences at the court, because you have people making arguments, and usually a lot of the people making these arguments actually haven't had district court experience either. So she's able to say, listen, I know how this happens in real life. And I think some of the justices really appreciate that.

And Justice Breyer was one of them. And so here's a clip of him appreciating her experience. There are judges on this bench who do have the experience of being a district judge. So I guess they'll have a view. I absolutely agree. I'm thinking, first, there's one appeal. It doesn't give you an extra appeal of 59. So the issue in front of us is, is a Rule 59 motion part of the same case, the first habeas that you brought, or is it a new thing? Is it second or successive? That's the question.

You agree, I take it, that judge says we're not going to have 15 witnesses because of next day. Lawyer says, judge, you forgot the word not in there. Oh, my God. Now, everybody agrees you should be able to do that. Right? Because that's before final judgment. Well, is that the reason? Or is it because it's an efficient way of getting the judge to correct his own errors? You don't have to answer that. But what I'm thinking of

is you're right that if 59 does about the same thing after the final judgment in 28 days, most of them will be dismissed. 28-day extension, 20-day extension. But let's look at the ones that are granted. Now, the judge says, my God, I made a mistake, et cetera. Which is more likely? Is it more likely if you keep those cases out of the court of appeals that the system is all going to take much longer because the guy's going to bring it up on appeal and everybody will have to deal with this kind of is so useful because it really shows his pragmatism. Like, really, are we really going to tell district judges, sorry, you can't correct an error? That seems like a really bad rule. And I think the SG of Texas didn't really have a good response to that.

But Ben Snyder, arguing for the SG, did have a better response. He basically said that this efficiency advantage that you're talking about is illusory. It basically never happens. To the extent that what you're doing here is you're making a practical determination, I think it's relevant that while Petitioner says that his rule will allow courts to correct obvious errors, he has not identified a single case since EDPA was enacted in which a district court has actually granted a Rule 59 motion in this posture. And his amici say that this happens regularly, but they've identified just three cases in more than 20 years in which it's actually occurred.

In one of those cases, the district court could have actually granted that motion under our rule. And in the other two, the Court of Appeals could have entertained exactly the same arguments. So the benefits of his rule are largely hypothetical and quite minimal. And on the other side of that ledger, you have Rule 59e motions being filed regularly in the last year, it was 22,000 habeas and section 2255 motions filed in the federal district courts. And so even if it only takes a few days for a judge or to read through the 25 page motion and say, okay, I've thought about these before. I'm not persuaded by any of these arguments over the entire course of those 22,000 cases, that burden is going to outweigh the best. How did they respond to that? I mean, I thought that was a good point,

but Justice Kavanaugh responded right afterwards. And he said, listen, the point you're making that these motions never get granted, that's true of Rule 59 emotions generally. They're almost never granted in the civil context, any context. I will say I have a perfect record on Rule 59E motions. I have filed two and won both of them, and I have opposed one and prevented that one from being granted. So it is not impossible to have a Rule 59E motion granted, but it is very rare. And so basically Justice Kavanaugh said, your argument isn't about EDPA. Your argument is why we should get rid of Rule 59E. But as long as we have Rule 59E, why should we not accommodate that rule in how we interpret EDPA?

We are all textualists now. Yes. I will say in general, it seemed from the argument like this was going to be a win for the petitioners. And in part because we are all textualists now, just like you said. But I think it is really hard to win a habeas case in the Supreme Court. So if that is the case, that would be very cool. That's great. Yes. So should we talk about our last argument recap? Sure. I'm excited about this one, even though I know usually it's Leah who's excited about the habeas and criminal stuff. And I'm excited about, you know, the civil law stuff. But so this case is Olguin Hernandez versus

United States. It is a case about criminal sentencing. And maybe it would be useful, Melissa, do you think for me to kind of just explain how criminal sentencing works? Okay. So basically, after someone is convicted, or if they plead guilty, they go through the sentencing process. And what happens is the government submits what's called a PSR, a pre-sentence memorandum. And it goes through the person's criminal history and results of an interview. And it goes through all of these various factors. They interview family members, associates. I mean, it's very holistic and probing.

Who does that? Can you remind me again? I'm sorry? Who does the PSRs? Is it the probation officer? The parole officer? It's the probation officer. Okay. So they submit this pre-sentence memorandum and it provides information about the sentencing guideline range and how many criminal history points and all of this stuff. And then after that, each side, the prosecution and the defense gets a chance to

file a memorandum suggesting what the sentence should be and why. And you might talk about it should be right within the guideline range, it should be higher, it should be lower, and here's all these reasons why. Then there is a sentencing hearing, and the judge imposes a sentence after going through what are called the 3553A factors. So it's a set of sentencing factors that the court has to consider. And then after the judge comes out with an opinion, if the defendant appeals, there's usually kind of two types of arguments that are made on appeal. One is a kind of procedural argument. So the defendant can argue the court didn't consider all the relevant factors or I, the defendant, did not have the opportunity to

present evidence or the judge just didn't calculate the criminal history points correctly or something like that. And then there will be challenges to the actual length of the sentence and saying, you know, you sentenced me for too long of a period of time. And that is reviewed for substantive reasonableness. Generally speaking, if the defendant is sentenced within the guidelines range, he will almost always lose a substantive unreasonableness challenge. But if the guidelines say the range recommended a 30-month sentence or like 30 to 40 and the judge imposed a 60-month sentence, you could actually win under substantive reasonableness.

It is a difficult standard, but it's not impossible. So that's what this case is about, criminal sentencing. And so the question presented is whether a criminal defendant who argues for a lower sentence during the sentencing process is required to formally object after his sentence is imposed that the sentence the judge imposed on him was substantively unreasonable in order to preserve that argument for appeal. And the Fifth Circuit said yes, which was out of line with the rest of the circuits. Basically, the Fifth Circuit said if you don't object after your sentence is imposed that you thought this sentence was unreasonable, you cannot argue on appeal that it was substantively unreasonable. Instead, you can only win if the district court made a clear error. And the clear error standard is basically never going to be satisfied.

It's even higher than substantive unreasonableness. So we saw something interesting from the SG in this case, Melissa. Do you know what position the SG took? No, tell me. So this was a case in which the SG was the defendant. The United States was the respondent. And the SG confessed error. Oh, neat.

Yes. So the SG argued for reversal with some caveats. So the government wasn't totally aligned with the defendant. The government said there's no post-sentencing objection requirement. That doesn't make any sense. But the arguments that the defendant makes during sentencing have to be basically the same ones that he makes on appeal. So you have to raise particular grounds during the sentencing process. If you argue in the district court, you should sentence me to only 24 months because I had a really awful upbringing and didn't

have the opportunities that other people had. Then you go up on appeal and you try to say you should have sentenced me lower because I'm very sick or for some other reason. You can't do that. The lower standard of review only applies if it's the same argument. So since the government conceded error, the court had to appoint an amicus. And we've talked about that before. Usually it is the circuit justice for the court that, you know, the circuit from which the court came, from which the case came. And here the court appointed Kay Wynn Allen, who's an attorney at Kirkland and Ellis, who is a former Alito clerk. And I think Justice Alito is the 11th Circuit Justice. So the amicus, and usually this is an amazing opportunity.

You can almost never win, especially when the government confesses error. It usually means the point of view below is pretty bad. But Kaywin Allen basically argued that in order to make this substantive unreasonableness argument on appeal, the criminal defendant has to make the distinct legal argument that the sentence the judge imposed was unreasonable and assert the specific facts and circumstances supporting that argument. Otherwise, you can't make that argument on appeal. Representing the criminal defendant here, though, was Kendall Turner,

who I think is at O'Melveny. Yes, she is. Right. Yes. And Kendall is a Garland Breyer clerk. She's an associate at O'Melveny, and she was basically recruited to O'Melveny to work with Jeff Fisher. And Jeff Fisher is a partner at O'Melveny, but he also runs or helps to run the Stanford Supreme Court Clinic. I also want to note that Kendall was really instrumental in leading the post-Kaczynski movement to force the judiciary to take action to address sexual harassment in the federal courts.

I worked with her on those initiatives and continue to work with her. And she's really an incredible leader in that way. So it was really cool to see her arguing this case. And she did a great job. She did a really great job. And I think she did a great job because she focused on both the substantive legal kind of doctrinal nerdy stuff and also on pragmatic arguments, the practical consequences. And on the kind of legal side, the argument she made basically is arguing substantive unreasonableness is the appellate standard of review. And no one ever has to raise the appellate standard of review in the district

court. So why should a criminal defendant have to? And so here's her kind of making this general point. It is, you know, it is a sort of a different argument on appeal, but it is no different than, again, if you were on appeal and you had to argue that the district court's ruling was an abuse of discretion, you don't have to make that abuse of discretion argument in district court, even though that is how you would have to frame your argument on appeal. It's exactly the same here. And we're just asking for those same rules to apply in this. That's very effective. I think it's effective. I generally think that the most effective arguments, especially when you're in a situation where not necessarily the most sympathetic position,

anytime you're representing a criminal defendant or an undocumented immigrant, it's always going to be a tough slog, just kind of where the court is right now. But making the argument, I just want you to treat this case like every other case. We just don't want a special rule that particularly and uniquely disadvantages criminal defendants. I think that is a very effective framing. And I think it was particularly effective because the position the amicus was arguing is that what a defendant has to do is have his attorney object and identify in the moment of sentencing precisely how and precisely why a judge erred when he imposed the sentence. And you have to make – No pressure. No pressure. precisely how and precisely why a judge erred when he imposed the sentence. And you have to make the exact same argument in the district court as you raise later in the Court of Appeals. And so here is that point. And the rule that I think the Fifth Circuit applies is just asking parties to make those same arguments in the district court. That's going

to be what they present to the Fifth Circuit or a court of appeals when they appeal it. We want parties to make the exact same arguments in the district court. So this is just, I mean, that's just a crazy rule. It doesn't apply anywhere else. You are never required to identify in the moment what a district court did wrong after it came to its decision and then give the district court an opportunity to correct those errors, otherwise forfeit it for appeal. That's what an appeal is for or a Rule 59e motion, which we talked about before. I also thought it was weird because the arguments – making the argument, you have to make the exact same argument in the appellate court as you did in the district court. That's just not how it works. There's no – almost no case in which the arguments look exactly the

same. Now, you can't raise a whole new claim. You can't raise a whole new legal issue on appeal. But the briefs are always going to look different. You get fresh eyes. You have more page space on appeal. So just this notion. In some cases, you may have assists come in, like NGOs will come in to help you out, like organizations, because your case becomes even more important as it progresses. Absolutely. One of the more interesting things happened in this case, because this was actually a sort of unusual case before the bar, at least for this year, because I think there were two women arguing. Yes, two women in the same argument.

So rare. Let's just say, like, for this sitting, I think it was great. We had a lot of first-time advocates before the court. That's always fantastic. It was great to see more women arguing before the court. That was fantastic. Well, let's be clear. There were the same number of arguments that involved women advocates as there were cases that Paul Clement argued. Okay. When you put it that way, I was trying to be optimistic and look on the bright because it's the holidays. Happy holidays. Yes. It's my love

actually moment. I know. Like gender equality actually is all around. Yes. But it was, you know, well, hopefully next sitting will be better. But it was great to, you're right, totally great to see a lot of first timers, really well argued every case that I heard. So I think it was. That's a good sitting. Good sitting. All right. So should we talk a little bit briefly about cert grants and opinions? Sure. So cert grant, there was one cert grant and a cert denial that I think you're going to mention. So the cert grant is this case called Carney versus Adams. And this is a really interesting case. It's a first amendment challenge to a state constitutional provision in Delaware that basically requires

diversity in political affiliation among the state's highest courts. So it basically imposes this requirement that says that the judges that are affiliated with any one political party can have no more than a bare majority on Delaware's three highest courts. And the other seats are reserved for judges affiliated with the other major political party. So when a position opens up, if there's already a majority of Republican judges on the court, there's only a slot available for a Democratic judge. The court also directed, so the court granted review,

and it also directed the parties to argue and to brief whether the respondent – and I'll tell you the respondent is an independent voter who is not a judge, but he would like to be a judge. And he said he is inhibited from applying for this position because only Republican positions have been available since he has been interested, and he is an independent voter. So the question that the court added was, does this respondent have Article 3 standing to challenge this provision when he's not a judge and he just wants to become one? There's certainly no certainty that he even would become one. And usually that type of certain injury. Speculative. Yeah. Though in the First Amendment context, I'll tell you, you know, if something can chill speech, chill association-free expression, that's usually enough. There was an, I think, really interesting denial of a petition for certiorari. And this involved a case called EMW, Women's Surgical Center versus Meyer. And this was a challenge to a Kentucky law that requires abortion providers to perform a transvaginal probe ultrasound that then would require the

physician to describe and display the fetal image to the patient, including playing an audio of the fetal heart tones. I thought this was so interesting that there were not four to grant cert here. And I think it's almost, it actually says more about sort of the dynamics of the court, what might be going on outside and inside the court than it does about this case, because this was actually, I think, a very worthy case. It is nominally an abortion case, but it's actually a First Amendment case. So the challenge really here is brought by physicians who object to being told to narrate the different parts of the fetus, to play the fetal heartbeat, and to basically say, as they put it, the state's message, a kind of to espouse a pro-life message that may contradict their own views. The last

First Amendment slash abortion case that the court heard was a couple of terms ago. I think it was the last abortion case that Justice Kennedy took before retiring, and it was a NIFLA versus Becerra, which was a challenge to California's FACT Act, which was a law that aimed to regulate crisis pregnancy centers by requiring them to provide written information to patients about state services for both adoption and also medical services if they wanted to have an abortion. And the crisis pregnancy centers objected, saying that this was compelled speech that required them to espouse a pro-choice narrative that they objected to.

That case struck down. The FACT Act upheld the First Amendment claims of the crisis pregnancy centers. And again, I think a lot of the same issues would be at play here. And so really interesting. And it's not clear whether NIFLA versus Becerra squarely resolves it because the First Amendment claims are on different sides. So, I mean, again, really interesting. But I really think this is about what else is going on. I think – I will say I feel really mixed about this cert denial because on the one hand, I have been saying since the beginning that I want the term to stay as quiet as possible. I don't want a big abortion case to come up to the court.

We have one. I know, but I don't want another one. Because I am worried about the result. On the other hand, if the alternative to having these types of cases being denied, start being denied on them, and it allows them to stay in effect in these states. The loss. Right. It's a loss for the people in those states whose right to have an abortion would be infringed upon. But it also, I think, then empowers other states to keep enacting laws like this. And what's the difference between a bad nationwide

rule and a refusal to review any of these bad state laws? I know there's a difference, but it just... Well, I mean, this is a little different from the law at issue, the admitting privileges law at issue in June services. You know, here you can get an abortion. You just have to subject and be subjected to this procedure, the transvaginal probe, ultrasound, and then the description of the fetus and the audible discussion of the fetal heartbeat. Yeah. I mean, I just, I think that the emotional impact of that is, you know, there are a number of people who find themselves pregnant, who, you know, were subjects of sexual assault people who find themselves pregnant who, you know, were subjects of sexual assault. And if they're going, trying to as soon as they can get in for

to have an abortion, then it's definitely going to be a transvaginal probe. And I know a number of women who when they were pregnant and it was a positive, wonderful welcome thing, they couldn't find it in themselves to go get a transvaginal probe. So they just didn't get an ultrasound until it could be an abdominal one because it was too emotionally painful with their history of sexual assault. So I mean, I know this is different, but I actually I had not thought about that. Those are really good points. I think it is worth noting that I think Kentucky has actually seen the decimation of clinics in that jurisdiction. I think this may be the last clinic standing in Kentucky. So that is not insignificant.

This doesn't necessarily lead to clinic closings. But I think you are right that it may deter at least some women from seeking an abortion. And I think that's the point. I think that's the point. And for those that nonetheless persist and decide to go through it, you know, it is- It can cause- I think- Incredible emotional trauma. Yeah. And I think that's part of it too. But again, I think the decision not to grant cert here is because, one, June services is coming down the pike. It's been slated for oral arguments on March 4th, his robe. There's already a lot going on.

And so I wonder if cooler heads prevailed and they said, just let this one pass. Although it is not an avoidance mechanism that the women of Kentucky who are pro-choice will really rush. Do you think if we send the chief some type of strict scrutiny swag, he might wear that as his sartorial flare. Probably not. Probably not. I mean, could you see that? Like, that'd be so amazing. I will say that this will remain nameless, but a federal judge did tell me that he saw one of the hoodies floating around New York City and where could he get one? Yes. I like it. As we were recording this episode of Strict Scrutiny, the court issued a number of new grants for Sarsha Rari, including grants in three cases involving subpoenas for the release of the president's financial records.

The three cases, Trump versus Vance, Trump. Mazars, and Trump v. Deutsche Bank, all concern the question of whether the president's financial records can be subpoenaed and released for investigatory purposes or whether the release of those documents can be deferred until after a sitting president is out of office. Obviously, this will have important implications for the development of the court's jurisprudence around the issue of executive authority and executive privilege, but it will also present the court with an important test for its own legitimacy. Much has been made of the court's rightward tilt, and of course, the two most recent justices, Justice Gorsuch and Justice Kavanaugh, are Trump appointees, and thus will be very closely watched as this case proceeds to argument

and eventually decision, which is expected by June. All right. Well, let's very quickly, I'm just going to mention, we'll mention the two opinions. The first one is Rotkiski versus Clem. And my apologies if I mispronounced it. So the court held, and usually Ginsburg is the first one to come out with the first opinion announcement. And she was not this time because she was in the minority, in the dissent.

So this court – the court held that the Fair Debt Collection Practices Act, its statute of limitations begins to run when a violation of the act occurs and not when it is discovered. So that's a kind of typical issue you see in a lot of civil cases. When does the statute of limitations start? And the court says the discovery rule does not apply to the statute. Well, it's almost kind of like a Lilly Ledbetter issue. Remember, that was Justice Ginsburg's point in Lilly Ledbetter. Like, why would you, why would the statute of limitations run when the discrimination first happened if you might not even know about it when you had yet to discover it? Yeah. And a lot of those types of cases, it'll look at the statutory context and all of these different things. But that's what the court held. And Justice Ginsburg

dissented. The second case is Peter versus Nantquest. This is a case about patent proceedings. And the one sentence background is that when a patent applicant challenges the denial of a patent in court and does so unsuccessfully, the statute provides that the applicant must pay all the expenses of the proceeding. So the question is, what are the expenses? And do they include the pro-ratus salaries of PTO attorneys and paralegals? That's the patent and trademark office attorney. So the actual state lawyers who are rejecting your patent, you don't have to pay for them. Yeah. So you don't have to pay their pro reta salaries. Like that's attorney's fees. Those are not expenses. So that's what the court held there. Thank you, Santa. We're supposed to

get some more opinions next week. So we'll see what happens. I still think we could get some, a dig or a mootness dismissal or something. We'll see. Maybe. It's holiday season at the court, and how do we know that? Because the court put up an enormous Christmas tree to let you know that it's the holidays. Yes, yes. Which is also, like, it's a little weird, right? Like, that there's a Christmas tree at the court. I don't know. The war on Christmas stops here.

So can I tell you which justice I know for a fact really does enjoy the holidays? Justice Sotomayor. Oh my gosh. So she had a tree and chambers, but she also had lots of other, like there was a menorah. I think at one point I encouraged her to include Diwali in this. So we were pretty eclectic. She loved the holidays, and she especially loved the Second Circuit Christmas party where she always made them play salsa music, and she would basically dance with all of the other judges. I mean, it was, like, amazing. She would dance with the mailroom guys, the judges. And so I know that she probably went to the court hoping to infuse a little life into the holiday gatherings, a little salsa.

Justice Breyer would totally dance with her, I feel like. Don't you think? Well, so I would think that like almost anyone would be like it's a bit of fun at the holidays. And then I read the Joan Biskupic book about her and about how when she tried to like introduce a little more levity into the holiday party at the court, they were like, yeah, girl, no, we don't do that. Oh, no. I know. And I was like, oh, she must be crushed. I will say that her chambers at the court is still incredibly festive at Christmastime.

Oh, totally festive. I was in her chambers once and I remember thinking, oh, my God, it is just beautiful in here. Like there was a lot of decoration. It's very aesthetically pleasing. It always was. And she is not afraid of garland. No, no, no. Merrick or otherwise.

Like, she likes a little garland. So she, like, put up the tinsel. She was really into it. Yeah. She was really into it. She made it fun. Yes. I appreciate that.

So what are you doing for the holidays? So we have, we keep it pretty simple. You know, I told you last time that my Thanksgiving is really big deal and I spend days cooking and I decorate the house. Like it's a big deal for me. So by Christmas, I'm a little kind of burnt out. And so usually we'll have a little dinner the night before. But then the day of, we will usually open presents and then go to a movie and go to dim sum. I call it, I don't know if you remember, but during Justice Kagan's confirmation hearing, she was asked. Yeah, she was asked what she did on, you know, where were you on December 25th? And she said something like, like all good Jews,

I was probably eating Chinese food. So we have like a Catholic Jewish Christmas. Oh, nice. We are going to head out to California and have a California Christmas, which means that it will probably rain profusely. There will be no sunshine because it's the rainy season in California. But it will be fun to be back there. And, I mean, it's still more food stuff, like presents. Like my kids just gave me their Christmas list. And like my son asked for like a $400 Lego set. And I was like, absolutely not. What? No. One of my daughters asked for a Nimbus 2000, one of the brooms from Harry Potter. And so my husband said, you know, I'm going to – Lily, how about I'll make you one?

And she goes, no, I'm going to wait for the one from Santa because he'll give me a real one. So I'm sitting here stressed out. And then I realized – I figured out what I'm going to do. I am going to write – Santa is going to write a note to her that says, I'm so sorry. Per Hogwarts rules and regulations, children are not permitted to ride a broom until they're 11. So you're going to have to wait until they're 11. So you're going to have to wait until you're 11 years old. And then I will hope she forgets between now and 11. I have an eight-year-old who I think is wise to who Santa is because he keeps saying things like,

I just really want this, whatever the $400 Lego set is. And if Santa really loved me, and if he was real, he would bring it. That's how I know he's real. And I'm like, you manipulated. That's cold. That's so cold. He's totally trolling me. But I'm like, I can't – literally, I cannot buy $400 worth of Legos. Like I step on a Lego almost every day and it is the most painful thing in the world. I cannot have $400 worth of them around.

Don't do it. I won't do it. All right. Well, we should probably call it a day. It's been so much fun. It has been fun. A shout out to all of you who've been writing in with your terrific comments and feedback and who've passed along messages. I got a really nice message from someone in the appellate practice at Morrison & Forster. I didn't ask permission to say his name, but he knows who he

is. We're really excited that you guys are listening and we're grateful for your listenership. And we are super grateful for the help of Melody Rowell, our producer, and Katherine Fink, who's our substitute producer, and Eddie Cooper, who does our music. So thanks to all of them for the work that they do to produce this. And just on a last holiday note, it is not too late to buy your holiday gifts from strictscrutinypodcast.com. We've got some really great swag. You can also, if you'd like to support our show, you can visit our Glow campaign. And the link to that is on our website and also on our Twitter account. And in the meantime, I hope you all have a happy holiday and I hope you have a lovely trip to California. I hope you have a great holiday

too.