Strict Scrutiny - Not Especially Judicious

Episode Date: October 9, 2023

Kate, Melissa, and Leah recap oral arguments in the cases the Supreme Court heard last week, including Acheson Hotels v. Laufer (a case about civil rights enforcement) and CFPB v. Community Financial Services Association (a case about the constitutionality of funding structures for financial agencies). Plus, more Voting Rights Act shenanigans.Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events. 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 legs. 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. And today we're going to do a deep dive on the recaps of the arguments the court heard last week. And we'll briefly flag some cases that the court will hear this week before we get into some court

culture. And there is a lot of court culture to dig into. So we'll talk about the cases from this upcoming week in more depth next week when we recap them. So let's kick things off with Atchison Hotels versus Laufer. This is the tester standing case. That is a case about whether testers who identify hotels that don't post accessibility information can sue under the Americans with Disabilities Act or ADA. Tester standing, as we noted in our last episode, is a very important method of civil rights enforcement, and the court has previously allowed tester standing in previous cases. So here, the defendant, Hotel, in this case, is seeking to narrow the availability of tester

standing and to eliminate it in these kinds of ADA cases where a hotel doesn't post accessibility information on a website. So the defendant says there would be tester standing if a plaintiff actually tried to go physically to a place of business. And some of the justices seem sympathetic to that distinction. But I wasn't totally sold on it because, you know, you might want to check whether the hotel has accessibility information before you go to the hotel. On top of that, so much stuff happens online today. Like online is the forum for checking out a hotel you're considering going to.

So I wasn't sold on that distinction, but it was what the defendant hotel was offering. Well, going online might also be especially important if you are someone with a disability. Right, for accessibility. Getting to places might be hard. Yes. This case is about tester standing. And the plaintiff responded in the case voluntarily dismissed her claims, meaning she filed papers in court saying she no longer wants to pursue this case. And meaningfully, the hotel after the case was filed also posted the desired accessibility information. And so all of these things together means that there is a really big question about whether this case actually presents a live case or controversy or whether it is moot

and whether the court should even decide if the plaintiff has testers standing and can pursue this kind of claim since the plaintiff is now trying to dismiss her case and end it permanently. So lots to talk about. One of the biggest judicial supremacists on the court, that is the Chief Justice, was pretty annoyed that the plaintiff would dare try to stop the court from ruling all of us, or at least ruling on this matter. So let's play that clip here. The mootness question of whether or not a plaintiff can moot a case to manipulate the jurisdiction of this court. I mean, the mootness papers weren't filed

until after the petitioner's opening brief. And by judicial supremacy, we just mean the idea that judges should be the ones resolving all of these issues, you know, constitutional questions like who can sue, you know, if Congress has authorized someone to sue, you might say, well, that is sufficient to allow that person to sue. But a judicial supremacist would say, no, like we courts actually need to be the ones to decide the issue. And as we noted in the last episode, you know, judicial supremacy kind of worked out in favor of civil rights in the Alabama case, since the justices were not keen on the idea that Alabama could defy their previous decision in Allen versus Milligan. But there again, it might have been judicial supremacy doing a fair amount of the

work. And that's not always going to cash out in favor of civil rights. Unlike the Chief Justice, Justice Kagan was pretty sure that this case was moot and the federal courts and this court in particular should have nothing to say about it. So here she is. I mean, it still feels a bit unjudicial, if I may say, so that the question is not just resources, but something broader than that. And I take the point that each of these is a jurisdictional issue and that there's nothing jurisdictionally precluding us, that this is a matter of prudence. But when you look at a case that's dead as a doornail several times over, you know, the case has been dismissed by the plaintiff. The defendant is totally different. The defendant's website, everybody agrees, is now in compliance

with the ADA. So this is like dead, dead, dead in all the ways that something can be dead. And to use that case as the vehicle for deciding an important issue, an issue that probably is going to need to be decided at some point, but surely can come up in a live case, I guess it just doesn't seem like something that a court should be anxious to do. Justice Sotomayor struck a very similar note. I'm sorry, I don't know why you haven't answered my question. Why isn't this purely advisory once there's no longer a live controversy between the parties before us? I like dead, dead, dead. I'm just going to start referring to that as basically all of the theories

this court is trotting out. Like, no, that one's dead, dead, dead. Dead cubed or to the third power. I thought that was also kind of useful. Yeah, we may we may bring those back later in the term. Honestly, merchandise opportunity. Dead, dead, dead. So one of you strict scrutiny listeners slid into our DMs to ask the question. And then another one of you who didn't want to get cheeky in the DMs decided to just hit us up on Twitter with the same question. So since so many people had this question, we thought we would answer. And the question is this. How is the current case, Atchison Hotels, different from 303 Creative?

And the listener goes on to say, not to say that 303 wasn't deranged, but as a non-lawyer, I sometimes don't understand the legal parameters. If testers pose hypotheticals and have standing for good reasons, as you explain, did 303 not have standing too? I'm assuming that even bigoted evil mofos, their term, not mine, can have standing in some cases. And that's the end of the DM. Wow, that's a whole question with a lot layered in it. So let's unpack. So there are several distinctions between 303 Creative and Tester Standing. One distinction is the fact that in 303 Creative, 303 Creative alleged that they as a business would be personally subject to legal penalties if they violated the law. Whereas

in Tester Standing cases, you have a plaintiff who who says, it's not that we are going to face penalties for violating the law, it's that we are protected by the law and authorized to sue under it. And that gets to the second distinction, which is in the test or standing cases, you have a statute that the plaintiff says specifically authorizes them to sue for this violation. On top of that, the case or controversy dilemma in 303 Creative was partially about the fact that you had a business that was not yet a wedding website business, and therefore it wasn't clear what sort of wedding websites they might make. Therefore, it wasn't clear whether they would be a violation of the statute or what kind of services they could offer to same-sex couples. And it was that lack of

clarity, the fact that we didn't know exactly what this business was or what any violation might look like, that was causing a lot of the problems in the case. There's a real range of views about how expansive Congress's authority to even create the ability to go to court and sue should be understood to be. Leah alluded a couple minutes ago to judicial supremacy, right? There is a view that basically Congress has very limited, if any, authority to pass statutes that create rights of action, that give individuals the power to go to court and sue. I think, at least I, and I think that probably all of us think that Congress should actually have pretty broad latitude to create, not just to define, but also to create types of injuries that federal courts are bound to recognize. And that's something that says Congress has an important role.

It's not just courts that sort of begin and end the conversation about our rights and their enforcement. And so I think that the question sort of implicates that kind of broader debate about how much power Congress should have to actually create standing in the first place. And then maybe one more point just in terms of what Leah said about all of the open questions that the lack of a live business in 303 Creative created, I think in many ways are a perfect illustration of why it is so dangerous for courts to decide cases where the dispute is so and any potential injury is so speculative.

You know, the court just doesn't give guidance about what the nature of this business is in a way that might enable future courts and litigants to understand the limiting principles, if any, in 303 Creative, what kinds of businesses might and what might not be subject to the rule that it sets forth, because there just wasn't the kind of factual development that litigation ordinarily results in that would tell us, like, what kind of, what is it to design a website? How creative is it really? Like, how expressive is it really? All of that was bulldozed over in the court's eagerness to get to the substantive question. So we just don't really know how 303 Creative applies. And that, I think, is a reason that

it was really important for the court not to reach to fine standing in that case. The business was, as they say, dead, dead, dead. So bringing it back to this dead case, any predictions on what the court is going to do in tester standing? You know, honestly, after the argument, I thought there were five votes and maybe even six at some points for the idea that this case is moot. This is a pretty moderate court. It's a very moderate court. This is a 3-3-3 court, coalition building. Right. And those 3-3-3 interestingly seem to be the three Democratic appointees and then some combination of Justices Alito, Thomas, and Kavanaugh, who seem to think the case was moot and should be

resolved on that basis. And I'm not joking. Putting the neo in neoliberal. Like, I am not joking. Like, Sam actually came pretty hard at the petitioner-defendant hotel for arguing, you know, that the case should be resolved on tester standing grounds rather than mootness? Suppose that there's a case that involves an issue that has divided the courts of appeals. There is an entrenched split. It would be helpful to provide guidance on this issue and not allow the split to persist. But the case before us is dead as a doornail and is not going to arise again between these parties. Would you say there that for the prudential reasons that have been mentioned, it would be permissible for us to decide the issue? And I just wondered, like, is he concerned that his colleagues are going to continue bringing

the squish, but on tester standing? Another possible explanation is that Sam is just in an oddly good mood that day and therefore able to register law. I wouldn't know since Travis Kelsey doesn't play on that team. Because like at one point during the argument, like Sam invoked Justice Breyer to laughter. Let me give you a hypothetical of the sort that our former colleague, Justice Breyer, might have asked. So let's say I am driving to a dog show and I am transporting my champion St. Bernard and I want to check into a hotel with my dog. However, if they dismiss the case as moot, as the justices seem to want to, I want to be very clear. I don't know that we're necessarily done with tester standing. I think we're just done with this dead, dead, dead case. And some of the justices seem to be sending a warning shot

that even if this case is dismissed on mootness grounds, they are eager and ready to take on a better test or standing case that would provide them with a cleaner opportunity to actually eviscerate civil rights enforcement. I think the chief's question was, next time we shouldn't do this. Do you agree? So this just isn't the vehicle, but it's coming and they just, they're ready when it comes. So we should also note, because I think we haven't said this, that actually the petitioner defendant doesn't dispute that the case is moot. They just say the court should decide standing anyway. So basically everybody agrees that the case is moot. The ask is just, even though this case is dead, dead, dead, you should still find that Ms. Laufer didn't have standing because that's also jurisdictional and the court actually can

choose which order to address these questions in standing first and then mootness or mootness first and not get to standing. And the ask is, it's a prudential determination, the court can make it, and so the court should choose to address the standing question. But as Justice... What is dead may never die. But as Justice Kagan said, in response to this argument, it seems pretty non-judicious for the court to stretch to decide the standing question when mootness isn't disputed, when everybody agrees there isn't a currently live controversy between the parties. And actually, to my mind, and this is sort of implicit in what you were just saying, Melissa, about the kind of warning shot some of the justices seem to be issuing,

it seems like it would be especially non-judicious to reach to address standing if the reason you're doing that is basically out of sheer spite because you think it is unseemly that Ms. Laufer files lots of lawsuits against noncompliant hotels and you basically want to teach her a lesson by finding she lacks standing. I mean, I do think no one explicitly made that claim, but there were threads of that in some of the argument for deciding the case on standing grounds, even though everyone just agrees it's moot. They think she's a troll.

A litigation troll. And they're annoyed. Takes one to know one. Trollito. The Supreme Court of spite. You know, the idea that the court is in the business of like teaching people lessons or teaching the country lessons. I mean, especially kind of right. Especially ladies. case, the joint dissent, NFIB versus Sebelius, that talks about the court needing to teach the

country a lesson about the importance of limited government by basically taking life-saving health insurance away from millions of people. That'll teach them. So good times. You'll be dead, but you'll know civics. Dead, dead, dead. Definitely. But appreciate the majesty of our separated powers, understanding that, appreciating that as in your final moments. That's the most important thing. Just to underscore, the whole idea of firing warning shots about what's coming down the pike is by itself a real flex and not especially judicious. But here we are.

Not especially judicious might be another merchandising opportunity. Oh, that is. Yes, that's a good one. Like robes. Robes. be another merchandising opportunity. Oh, that is. Yes. That's a good one. Like robes. Robes. You can get robes. Yeah. Not on the back of like sponsors.

Like Crow Industries. Not on the back. All right. I like it. The next case we're going to discuss is Pulsifer v. United States, which once again is the case about the meaning of a provision of the First Step Act, and specifically who is eligible to be sentenced under the safety valve provision of the act, which provides for discretionary sentencing rather than mandatory minimums. The safety valve provision is available to those who are convicted of nonviolent drug offenses if they don't have criminal history points from a four-point offense, a three-point offense, and a two-point offense. And the question in this case is whether the and means literally and or whether it means or. At argument, the idea that and means or was referred to as the distributive meaning of and.

I think because this is just such a bonkers kind of question. But yes, the distributive meaning of and is that and means or. This question could affect thousands of cases and maybe hundreds of years of incarceration, if not more. So what Anne means really does matter. As we noted in the argument preview, Neil Gorsuch's métier is most definitely textualism. He gave the government a hard time as the government was pressing for the idea that Anne should not have its ordinary meeting. You're saying, hey, Congress wouldn't have done this because it wouldn't capture some bad people. That seems to me, at heart, one of two things.

Either an argument about intent, Congress couldn't have intended this, wouldn't have intended this because it wouldn't want bad people to get away, or two, it's a policy argument. You shouldn't want this to happen. And either of those seem to me straining, at least your claim that this is all consistent with textualism, especially since you haven't identified a canon other than absurdity that would be kind of a classic textualist argument. Well, with respect, Justice Gorsuch, I think we are relying on a traditional tool of construction that this Court relies on all the time. Which is what? It's called common sense in your brief. I don't know that canon, but I guess it's a good one. It's called construing the structure and the text of the statute, gleaning the evident purpose.

Purpose. So it is purposivist. At some level, yeah. Is it weird that I kind of agree with him? Substance, yes, but he's just so weird. He can't say even reasonable things in a good way. Even when I agree with him, he is making it weird and making it worse. Yes, that is an Olivia Rodrigo reference. And there were times when he actually did kind of keep that in check and was helpful,

like when he offered a long rephrase of the petitioner defendant's argument during the seriatim format of the questioning where the justices take turns. We're not going to replay that in its entirety here. But here was the petitioner defendant lawyer's response after Justice Gorsuch kind of outlined the argument. That summation was better than my introduction. I don't think you're missing anything, Justice Gorsuch. I have to say the petitioner defendant got a harder time from the justices than maybe I was predicting. I don't know if that's because it was like the first argument of the term and the justices were just into it and wanted to press both sides. I know I said Sam Alito was going to be running corpus linguistic searches to prove that and can mean or, but Amy beat him to the punch in invoking these corpus linguistics

searches during the oral argument. So what about the corpus linguistics brief that says in 38% of the time, I understand, and you rely heavily on the fact that over 50% of the time people understood it in its joint sense, but 38% of the time they understood it in its distributive sense. Although Sam did invoke them here as well. This case to me raises a lot of general questions. It may not dictate a decision one way or the other. But on this last point about the corpus linguistics brief, I think this is a very promising tool. Maybe we should explain what corpus linguistics is.

So corpus linguistics- Feels like something cooked up in a conservative meth lab of grievance. Am I wrong? So I think often you are right. I'll explain why that's not necessarily the case here in a way that I find like slightly irritating. So corpus linguistics searches is just the idea that you basically take a term and you run through anthologies of texts, you know, whether it's dictionaries or just, I don't know, articles or compilations of words or here like a survey where you give people a bunch of different phrases and you say, like, well, what does the person mean? Like, does and mean and here? Or do they mean or,

you know, and whatnot. And I just think that like, this is sometimes, maybe even often, but like definitely here a kind of insane way to try and figure out what and means because it's utterly it's utterly decontextualized right like you can substitute and into a billion different combinations and when you ask someone well what do you think it means here you have no idea what they are imagining themselves the audience to be you don't know what they are imagining the speaker to be you don't know what sort of assumptions they are making. And it's like, well, here we're dealing with a criminal law that could impose a bunch of years on people. And the ordinary meaning of and is good enough. And it's just, I don't understand the need to do these flexes where like, of course,

we noted on the last episode that yes, and isn't necessarily always going to be meaning and especially when you're talking about conversation. But again, this is like a criminal statute with a bunch of penalties. Like, don't read me a bunch of surveys that ask someone like, well, what do I mean when I like say this phrase? I don't care. Yeah, a couple thoughts on corpus linguistics. I think that the kind of intuition that I mean, I agree, it feels like pseudoscience a lot of the time, but the intuition that I think underlies it, the kind of intuition that, I mean, I agree, it feels like pseudoscience a lot of the time, but the intuition that I think underlies it, which is, it's actually not great for the justices just to always draw exclusively on their own personal conversational experience and say, everyone knows how X is deployed and to try to bring some methodological rigor. So it's not just the justices, you know, adverting to their own like idiosyncrasies and intuitions or kind of randomly

cherry picking from like history and literature, the use or appearance of particular words. So the idea like is we put together these large databases and actually run through them and figure out how language is actually used in particular contexts at particular moments of time. I'm just saying like that is a charitable characterization. I think it might have some value. I think certainly if the context is the word and, whether we're talking about database searches or survey results, that's preposterous. And so I think that there's limited utility. And I think I'm not at all suggesting that this should be an important tool in statutory cases. But I think that the idea that trying to bring actual usage of language into the way that justices understand statutory terms might, depending on how it's done, be constructive.

So here's my beef with corpus linguistics and why I think, again, cooked up in a conservative meth lab of grievance. Like the whole debate about algorithmic justice is like data that goes in can be garbage and it will spew out garbage. So everything kind of depends on what the corpora is. Like what are the sources on which you're drawing?

And it's not entirely clear to me that it is as broad based as what Leah is identifying, like surveys from different people, which people, who, what dictionaries, what anthologies. And so again, it's sort of like the scam that is originalism, like presented as this sort of objective thing, we're just going to go back and look at what this meant in 1789. Or now we're just going to go back and run a program. It's going to tell us what it means at time one and for everyone else. But it's not objective because you don't know what the sources are. You don't know how it's being deployed.

And in the same way that originalism is not objective because it's not actually a real thing. It's cooked up in the Mies Department of Justice, meth lab of conservative grievance. The end. End rant. Dead, dead, dead rant. And to be clear, I was not disputing sort of conservative grievance. The end. End rant. Dead, dead, dead rant.

And to be clear, I was not disputing sort of any of that. I just think in the abstract, it would be, I think, useful. No, you're being charitable as you always are.

If you decontextualize corpus linguistics as corpus linguistics decontextualize text, right, you can get something out of it. I expect nothing less

from you, Kate, than to bring a generous, charitable reading of something. Just do my best. That Leah and I will then take a crap on. That's basically the script. Okay, so back to the pulse of our argument. So there was this invocation of corpus linguistics. One notable observation I think we all made during that argument was that Justice Kagan was much more sympathetic to the government than we expected going in, or at least than I expected going in. She also described or maybe recharacterized the government's argument in a way that seems worth spelling out since there is a chance the court might adopt it, right, where and would mean or, but then Congress just rewrote the statute to be more efficiently worded, but still meant to retain that core meaning that and means or.

I mean, to be, I just wanted to say here, to be more efficiently worded, you took out or. Or is two letters. To more efficiently, like, lock people in jail for, like, millions more years, like, they're not allowed to just, like, efficiently cut corners. You got to be super clear in doing so, right? You got to carry it through. All right. So just to say, Justice Kagan seemed to be positing that what Congress had in mind was something like the defendant is eligible for relief if he does not have four

criminal history points, does not have three criminal history points and does not have two criminal history points, which the petitioner defendant conceded would be the distributive meaning of and. And then Justice Kagan followed up with, Congress rewrote that version to have a single and. She also argued that the conjunctive reading, so this is different from the distributive reading, the conjunctive reading is where and means and. I call that the actual meaning of and, but we digress. She argued that the conjunctive reading is common, and often does mean and, where the harm arises from some

interrelationship between the items on a list, like drinking and driving, for example. But she said the distributive meaning arises where the harm is independent, and she seemed to think that the 2-point, 3-point, and 4-point criminal history points are themselves independent harms. distributive meaning arises where the harm is independent. And she seemed to think that the 2-point, 3-point, and 4-point criminal history points are themselves independent harms. But again, given how minor 2-point and 3-point offenses can be, it's not clear that they are independent enough harms by themselves that would lead Congress to retain this mandatory minimum scheme that they were trying to meaningfully adjust and substantially depart from in the First Step Act. Whereas I think someone with like, two points,

three points, and four points captures someone who is like, all the fuck over the criminal legal code, right? And like someone who is just like, criming left and right and doing all kinds of crimes, who maybe has like different felony counts in like many different jurisdictions. I don't know. But the Chief Justice also pointed out that like, even if you granted that drafting history or what Congress might have in mind, there actually isn't another statute that lists eligibility criteria like the first step does in the negative that has been interpreted this way where and means or. So this really would, again, be a departure from what laws, statutes, words usually mean. Not just in statutes. In general.

Walking around. In the corpus. Correct. Lots of expectations defied, I think, going into this argument or coming out of the argument. It's a really hard argument, I have to say. Sam, yeah. Very hard. Sam did have this oddly welcome interjection, so let's play that here.

I think that the move to textualism in our interpretation of statutes was enormously beneficial, and it eliminated a lot of abuses that previously occurred. But in the end, we are just interpreting language. Everybody, I assume, in this courtroom today speaks the English language, and all we're trying to do is understand some words in the English language. And it just seems to me that a lot of these arguments that we've heard — I mean, the people here who haven't studied the case must think this is gibberish. It might as well be Greek with all this stuff about distributive and MDASH and all of that. Is it necessarily that complicated? I guess kudos to Alito for saying what shouldn't have to be said, but that like, we're just interpreting language. And many of the claims of textualism are, you know,

a little bit overstated, even though, of course, he starts by offering this kind of peon to textualism as having radically improved the interpretation of statutes. But with him sort of seeking to simplify at the end of the quote that we just played, I just, you know, ordinarily for him, simplicity would seem to cut in the direction of the federal government getting what it's asking for, meaning fewer people qualifying for relief under the First Step Act. So I'm just not positive I know how simplicity will cut when we're talking about Justice Alito. And since we're on Justice Alito, he also had this weird moment where I don't know what journey he's on with textualism right now, quite honestly, but he seemed to be sort of denigrating the absurdity canon,

which typically even hardline textualists like Gorsuch and Kavanaugh and Barrett, they referenced during the argument and they have suggested that that's an important principle. So here is that Alito exchange, and then maybe let's talk about it for a minute. On another point, do you think the absurdity canon is about anything other than intent? I think it is partly based on this assumption that Congress is a rational and intelligent drafter of statutes. And so when we see a result that is absurd, we presume that that is not one Congress meant to embrace. It's an intent that's attributed to Congress. We assume that they do not intend to write something that's absurd.

Correct. Right. So it is about intent. Correct. It is about intent, and it's intent against the backdrop of a body, Congress, that we presume objectively to be reasonable. And if that is the case, why would we draw a bright line between absolute absurdity and near absurdity? So, you know, this is a point that absurdity as an idea that, you know, even if you're a textualist, if the literal meaning of a statute would produce a truly absurd result, you're not supposed to adopt that reading of the statute. That has long been a canon that textualists have accepted. Folks like

John Manning have written articles, you know, many, many years ago criticizing the absurdity canon as fundamentally resting on intentionalist and thus forbidden assumptions or principles. It was an interesting moment to me. I didn't totally know where he was going with it, but it called to mind a point I'd actually been wanting to make about this term, which is that there is going to be a decent amount of shadowboxing with Justice Scalia. And I think there's a decent chance that positions of his are likely to be disavowed. And that is as stark an indicator as any of how far the court is moving, right? So Justice Scalia, really the father of kind of the modern new textualism, always agreed, although he didn't use it all the time, that absurdity and the absurdity canon was legitimate.

And, you know, six years ago, five years ago, three years ago, we had the Trump appointees kind of fighting to wear the crown, right? Like as the true heir to Justice Scalia. And now – I'm the heir of Slytherin. No, I'm the heir of Slytherin. Wasn't that the dynamic? Yeah, in Bostock, the Title VII case. Like Justice Scalia would have been with me.

No, he would have been with me. to lock in expanded gun rights, even in instances that Heller clearly, Heller, Scalia's opinion in Heller clearly contemplated gun rights wouldn't be available. That's, of course, the Rahimi case. So I just think the fact that Scalia is the new liberal squish on the court, at least I think that's what, that is one emerging theme, is really important. And again, an indicator of the speed and the magnitude of the change that is afoot. Justice Scalia was a well-known rhino. Little known fact. I think they basically are-known rhino. Little known fact. I think they basically original rhino. Kate, you said a whole word, but the thing I'm most interested in now is

the documentary Shadowboxing with Justice Scalia, which I hope Don Porter is listening to and will immediately put into production. More generally, a lot of the justices in Pulsifer were pushing the defendant to concede that and could sometimes mean or, and that meaning would depend on context. And the countess of context, one Ketanji Brown-Jackson, intervened to make the point that we predicted she would make. It's like she's been listening to us almost. Easter egg, Easter egg from KBJ. We predicted that she would push back on the idea that the defendant's interpretation would result in lower sentences for people with more serious criminal history background. So let's play the clip. Don't they have to under the sentencing guidelines?

I mean, the safety valve just removes the mandatory minimum. But don't the judges then have to look at the guidelines? And wouldn't you expect that a defendant who had a number of serious criminal violent priors, the guidelines would take account of that in terms of what the ultimate sentence was going to be? So in some ways, the justice's hesitation over the, you know, just the text and only the text argument was good in that it's kind of distancing complicate their wooden brand of textualism is when their wooden brand of textualism would support a defendant or support voting rights or support agency authority. And like that's when they're like, oh, we'll just like turn to context and these other things, too. It's almost like they're selective about their principles. It's almost like that.

Almost. It's almost like their principles are dead, dead, dead. And Neil Gorsuch was quite pissed off that people were just not that into textualism. So you think the Ninth Circuit was wrong in a case that favors you?

Alas, here we are. Day one. I'd also like to note that I am also over this term on day one, Neil, so we have that in common. So takeaways from this argument. You know, I counted, I think, four votes for petitioner-defendant between Justice Sotomayor, Justice Jackson, the chief, and Justice Gorsuch. And I am really, really, really hoping that there is a fifth vote, maybe from Thomas, maybe from Barrett, maybe though the seem less likely after the argument, Justice Kagan. I'm hoping there's a fifth. I think there should be more than five votes. And I guess we will just leave the case

with the Countess of Context summing it up as she is able to do so well. So I appreciate that and can sometimes mean or. But this is not a conversation. This is a statute. And it's a criminal statute with huge implications for the lives and well-being of the people who come through the system. And so I guess what I'm trying to understand is why the imprecision in this statute, the fact that you say that there are two textually, grammatically possible readings, why doesn't that count against the government? Justice Kagan said, I'm going to assume lenity applies. Can you help me understand why it wouldn't? Also one short errata. So we mentioned Pulsifer was represented, I think, in passing by Jones Day,

actually represented by Skadden, the lead attorney on the cases formerly at Jones Day. Can I just ask one more question about this? It's actually a theme for this whole stupid sitting. Why do these men insist on- Dumb, dumb, dumb. Dead, dead, dead. Dead, dead. Dumb, dumb, dumb.

Why do these men insist on interrupting KBJ? And I'm not just talking about her male colleagues, also the lawyers. We're going to get to Noel Francisco. But cheese and rice. Could that guy get a clue? She's wearing a robe. Shut the F up when she's talking. She was not here for him either.

We're going to get to that. But do you agree? Did you? Oh, yeah. Definitely. Stepping on her words constantly. And her colleagues as well. I want to be her anger translator.

I just want to be like, can I just show up at oral arguments and just sit next to her and just be like, shut up. I'm not done. I'll let you know

when you can talk. Thank you. Sit down. The anger translator would just have a field day in the CFPB. I want to be KBJ's. The CFPB argument.

Oh, yeah. I mean. I felt like I could hear her rage in the silences just on the audio. Yeah. Oh, the audio. Yeah. Oh, my God. Yeah.

Can we go on to CFPB versus Community Financial Service Association, also known as Payday Lenders? Yeah, we yeah, Payday Lenders. Yeah. We saved the best. I don't know if best is the right descriptor, but we saved a really important case for last. Most interesting. It was a really rollicking oral argument, I guess maybe we could call it. The case, just as a reminder, is about basically whether the court has the appetite to trigger another great recession, maybe depression, by invalidating the funding structure of the Consumer Financial Protection Bureau and calling into question, potentially, the funding structures of many other federal agencies, including such obscure agencies as the Federal Reserve Board and the FDIC. So we will see. You'll recall, listeners, that the Fifth Circuit said that the CFPB was unconstitutional because Congress wrote into the statute a longer term appropriation to the CFPB that was coming from funds that were not directly appropriated from Congress. They came externally from funds from the annual appropriations process. which is weird to invoke here in a case where judges purport to tell Congress what it did wrong, but no worries.

Because of the principle of legislative supremacy and the Appropriations Clause, the courts can now tell Congress how it can exercise its appropriation powers to fund agencies. I just want to say, this entire case was giving Congress as the Little Mermaid vibes. Like some big, bad sea witch like Elizabeth Warren stole Congress's voice and took her power. And now Prince Eric slash the entire conservative wing of this court, shadowboxing with Justice Scalia, is going to come in and save Congress from itself by telling Congress how best congressional power should be executed by judges. Because you know what?

The separation of powers just needs to use a little body language. Body-yaddy-yaddy-yaddy-yaddy. Stop it. That's the whole thing. I feel like the first question out of my mouth when this argument started was like, if it's so fucking bad, why can't Congress just go change it? You know what? Weirdly, Brett Kavanaugh made this point, too. I know. It was crazy.

I know. Honestly, I feel like this case is just so easy. That's what was happening. Because, you know, as Melissa's comment suggested, good news, America. The Supreme Court does not seem eager to trigger a second Great Recession or depression and nuke the CFPB and declare a field day on other financial institutions. Having said that, Sam Alito does appear open to doing so. I also read Neil Gorsuch as, like, Great Recession curious. Maybe Thomas as well. Hard to say. Honestly, I thoughtious, maybe Thomas as well, hard to say. Honestly, I thought the Chief Justice did as well. I'm not sure like when it comes down to

the actual drafting where he will be, but he was pretty, I thought, close to where at least Gorsuch and Thomas were during the argument. I mean, I do still agree with you. I think the Fifth Circuit gets reversed, but I wouldn't rule out 5-4. And that I think is completely insane because this case obviously should be 9-0, but you know, we're getting ahead of ourselves. Maybe let's start with the Countess of Context slash the Countess of the actual Constitution on really the heart of the matter in this case. And the reason I think that is because of the language of the Appropriations Clause and the way in which it seems to give the legislature the prerogative of the purse. And here we have a statute in which the legislature

has exercised that. So we also got a nice window during this argument into Justice Kagan and Justice Sotomayor's and then also Justice Jackson's as we'll get to in the end. But here, just Justice Kagan and Justice Sotomayor's burn books. And apparently, Noel Francisco, who was arguing the case for the Payday Lending Association, as well as the Fifth Circuit, occupies several pages in those books. So Justice Kagan underscored a point we talked about in the preview episode, namely that Congress has always, since the beginning of time, relied on appropriations that aren't just year-to-year appropriations in an annual budget. So let's play that clip here. The history of our country just rejects that scheme. I mean, that might have been a way to understand what the framers were doing. But it turns out that from the very first year,

that's not what they were doing. That's not what they did. Annual line item appropriations were some appropriations, but massively not all appropriations. And so you're just flying in the face of 250 years of history. Basically, it's called originalism. Fifth Circuit, look it up. And Justice Sotomayor deployed an oldie but goodie insult that she often reserves for the most unhinged arguments that she is forced to endure as a sitting justice. I'm sorry. I'm trying to understand your argument that I'm a total loss. I'll try to do better. Okay. Please do better. Please.

Can we pause for a second in just how disrespectful Francisco's response was? Am I wrong in reading when he sort of says, I'll try to do better? He was just basically like, go F yourself, I thought is what I actually heard. And I kind of couldn't believe he said it as opposed to just thought it. He was stepping over a lot. He also did this to Justice Kagan. He was kind of like interrupty with her a fair amount. She was having none of it, though. Oh, we'll get to that clip later. Yeah. Maybe now, though, let's just play Justice Kagan pressing a point that you, Melissa, made in the preview,

which is we talked just a couple of minutes ago about the fact that what the court says here could have bearing on other agencies and institutions like the Federal Reserve Board. So Kagan was pressing this point that even though the Fifth Circuit and the lawyers representing the payday lending industry tried very hard to distinguish the CFPB's funding structure from the Fed, basically labeling the CFPB as containing this kind of double insulation from the appropriations process. It does seem like because they're both funded from assessments on banks, that's a little bit of a stretch to try to draw such a sharp distinction. And so Kagan seemed to be suggesting that in her view, the challengers' arguments absolutely would jeopardize or at least implicate the Fed's funding structure. So let's play that clip here.

It sure seems that on your view, the Federal Reserve would also be unconstitutional. And of course, I think it's true that on the logic that's being offered, a lot of other financial institutions would also be in jeopardy. Kagan shares that concern. Yeah, it's just too important and whatever. I mean, the FDIC, the OCC, they also fail your test. And I- This is a t-shirt right here. Too important and whatever. Whatever. I mean, the FDIC, the OCC, they also fail your test. This is a t-shirt right here. Too important and whatever. Whatever.

Did feel to me like Kagan calling BS in pretty explicit terms. She basically is saying, okay, you have a test. You're offering us a test. It would obviously doom these other agencies. And so when we press you on that, you change the test, which I think just makes it so crystal clear. I think that the challengers here, they hate the CFPB. They will say whatever is necessary to get the court to strike it down, but they don't really have the appetite to bring down the global financial system. And so we're going to try to distinguish away other entities like the Fed. You're just trying to make the world safe for payday lending. We don't want to do anything more than that. The economy must be a safe space for payday lenders. It's written into the appropriations It's a totally unprincipled position. And I think the or whatever in Kagan's question

makes clear that she shares that view. Yeah, it's like the ultimate like no law, just vibes, right? Because they're just abandoning the legal test. There isn't really a legal test. They're just like shooting from the hip at like whatever agencies they don't like. Pew, pew, pew, there goes the CFPB, but like no Fed, you're safe, right? And like, that's just kind of what they're doing. Because it seems like the Supreme Court might reject the Fifth Circuit's view of the Appropriations Clause, wanted to step back and just maybe offer some thoughts on some differences between the Fifth Circuit and the Supreme Court, because I'm hoping this will be one of several cases where the court actually diverges from the Fifth Circuit.

And our listeners are smart. And so they can hold like two ideas in their head, those ideas being that the US Supreme Court is crazy, and that the Fifth Circuit is somehow even crazier. And yet, I am concerned that legacy media is not yet able to see these things. So I'm going to try to explain it. To me, and the chief, they are the Bush campaign legal team, right? Like Bush versus Gore. That's crazy, but it's not elite strike force legal team. They are willing to go with arguments that have been cooked up and refined in the course of the federal societies last several decades, but not like whatever poo someone holds out to destroy a disfavored agency. And again, these things are different, right? They are both unhinged, radical, extreme, but they are different, maybe, you know, in degree rather than kind doesn't mean

right. This other group isn't also cray cray cray but that's a great comparison i'm going to resist one aspect of it like to the extent that legacy media will not sort of delve into that nuance i think it's partly because one it's not that nuanced but i think when they talk about a 333 court with the chief and kavanaugh and barrett on one side and then the other three conservatives on the other and then the liberals that That's kind of what they're getting at. Like what you basically have within that block of six on the court is an internecine fight between what kind of Republican the conservative block is going to be, like a Bush era Republican sort of very conservative, but not necessarily wackadoodle.

Or are we going to go the full MAGA? And that's where the other three are. And I think we're seeing that play out. Like, you know, the three that get posited as moderates are really just Bush-era conservatives, where they were actually very conservative. I like that comparison also, because it also gets at the fact that, like,

all aspects of the Republican Party, including the Bush conservatives, are enabling the MAGAs, right? They're all doing the MAGA thing. They just do it differently. Yes. Because like the outcomes will be relatively similar. How they get there will be different. But like they're all on board for the outcomes. And yeah, I think that's exactly right. Of course, as we know from Don Porter's documentary, it's not clear that everyone on Team Bush knows who Brett Kavanaugh is. Anyway, this argument was also a tale of two solicitor generals, Prelogger and Francisco. And I just want to note... we should say no, Francisco was

a former SG in the Trump administration, just to remind listeners. Yeah. Yes, the guy who made it safe to get on the shadow docket again. Yeah, for sure. Solicitor General Prelogger hit the ground running in this oral argument with pages and pages and pages of very specific historical examples of how appropriations like the CFPB's appropriations were consistent with the historic tradition of appropriating funds over time. And that to me is actually really interesting. I mean, it was almost like Bruin, but make it payday lending, right? I mean, she was basically using the court's history and tradition test and now applying it here, which tells you how pervasive and influential this kind of thinking from the court has been, not just in oral arguments on cases like abortion and guns, but even in this sort of question about how Congress can use its power. So this history and tradition thing is a thing and they're going to use it and it's shaping an influencing argument. One thing, though, I actually think the use of history in these separation of powers cases actually has a pretty long and I think uncontroversial pedigree.

I think actually when we're talking about provisions of the Constitution that are pretty spare, there's not going to be much case law on them. All we really have is, I guess, corpus linguistics and our own intuitions and cocktail party conversations. But more importantly, and not facetiously, the actual course of dealings between Congress and the executive branch or by Congress and agencies. And so all of that, I think there's a very long and well-established history of the court adverting to correctly. What I think is really novel, though, is the Dobbs and Bruin use of history, which I do think really breaks from decisional methods that the court has long used. I think I'm saying a different thing. I think here in the separation of powers context, she's actually marshalling lines of arguments that conservatives used in Bruin and Dobbs successfully,

which is to say that this fits into this historic, I mean, she's basically using the Dobbs and Bruin analyses as a template on which to layer this argument about separation of power. So it's not simply that, yes, we have done this before. And here are examples of how Congress has interpreted this in the past. She's like, basically saying this, there's a tradition of historic regulation of appropriating in this way, in the way we would say there is a tradition of gun regulation that makes this okay. Yeah, and so – Good for the Gander. I think it's really interesting.

Yeah, no, I think both are right that there is a tradition of it and it is pitched in a way that should be really hard for the conservatives who embrace history in those other contexts to ignore or reject. And, you know, just another, which is great to watch them actually do that. And so speaking of those conservatives who apparently only like history and tradition, when it's, you know, sending women to parking lots to become septic, just sorry. Noel Francisco, he showed up and was basically like, here's what the Appropriations Clause means. And it basically means Congress has to specifically identify a very basic dollar amount in an annual statute. And that's the only thing that the Appropriations Clause allows, which, again, entirely inconsistent with history and tradition. But it doesn't matter because no one is sending Congress to a parking lot to have

a septic payday lender. I have to say, while Noel Francisco was very confident that that's what the text of the Appropriations Clause means, I'm not super confident that he has a firm grasp on what all words and phrases means because does he know what the phrase jump the shark means? He does not. Here is his literally opening argument, which I take it he like prepared and thought about in advance. So let's play that clip here. That's why Congress rejected that model for the CFPB. They thought it made the agency too politically accountable. And if you jump the shark from those to this, then you have blessed a regime in which Congress can authorize the executive branch to spend whatever it wants

to fund the entire government. Has he watched Happy Days? I haven't watched Happy Days, and I still don't know what it means. Like when Fonzie jumped the shark. Yes. The show is over. That's not what this means. No, sir. Get you a Gen Xer to explain these things to you. I think Justice Thomas tried to throw him a lifeline because Noel Francisco got absolutely bodied by a tag team of Justice Jackson, Justice Sotomayor, Justice Kagan. And then even Brett Kavanaugh jumped in to literally pile on. So here's a clip of Justice Thomas coming to the rescue. Mr. Francisco, just briefly, I'd like you to complete this sentence. Funding of the CFPB violates the appropriations clause because.

And that was followed up by Justice's absolutely brutal seriatim questioning with Justice Kagan, which I think is the one you were referring to, Melissa, when you were saying Justice Kagan was like really not having his BS. Well, then you're amending your answer to Justice Thomas. No, I'm not. That would be a much more difficult question. Could I just please ask my question? Because when you talked to Justice Thomas, you said that the because, what followed the because, was that it was an up to X rather than a specification of a number, no more, no less. So if that's right, then it must be right that Congress could take this back and say you have to spend $600 million,

and that would be constitutional. And what I would suggest to you is that's what your argument is, and that's profoundly ahistorical in terms of our history. There was also, by contrast, this extremely painful over-page-long in the transcript that is just Neil Gorsuch interrupting S.J. Prelogger enough to make you go insane. So we're going to spare our listeners that, but it's definitely on a full page of the transcript. But on the Prelogger point, so again, Solicitor General, Prelogger, we have talked about her a lot on the podcast. She was fantastic in this argument. She is always fantastic. And she was, as she always is, measured and respectful even when getting totally deranged questions.

And yet and yet, I think this is the first time I saw just a glimmer of snark from her. Maybe I'm forgetting another instance, but I can't think of one. Her anger translator was lurking under the surface. Okay. So you thought so too. So here's the context. Alito is pressing her to identify a historical example that looks just like this one, because the argument is a lot about, as Melissa and I were just talking about, sort of what the history shows here. And she's responsive, but she seems ever so slightly to emit some frustration with what he seems to be demanding of her. So let us play that clip here. What is your best example of an agency that draws its money from another agency that in

turn does not get its money from a congressional appropriation in the normal sense of that term, but gets it from the private sector? So I can't give you another example of a source that's precisely like that one, but I would dispute the premise that that could possibly be constitutionally relevant. This is a case about Congress's own prerogatives over the purse, its authority. And if Congress has given away too much of its authority by not providing for a durational limit or providing for too much discretion to the agency, then I don't see how it could possibly fix the problem that other fee-funded agencies

directly collected their money from the entities they regulate. So I take it your answer is that you do not, that is not consistent with any historical practice, but you think that to the extent it is unprecedented, it is unprecedented in a way that is not relevant for present purposes. Is that your answer? Yes, primarily. I think it'd be unprecedented in the way that you could say this is the only agency that has the acronym CFPB. That's obviously true also, but it doesn't track the constitutional value. So, right. It is unprecedented in the way you could say this is the only agency that has the acronym CFPB. So, yes, Justice Alito, that's true.

And yet the distinctions that you're identifying are not germane. This was a little snark, wasn't it? Yeah. She's kind of done with him. I mean, he actually was very, I think, aggressive with her about the history and historical analogs for the CFPB. And there aren't many. But, I mean, the point wasn't that there's always been a CFPB and it's always had this kind of appropriation.

The point was like, there are lots of agencies that are structured in this way. And anyway, moving along. I just want to note the significance of Justice Jackson going last in the Syriatum questioning, which, again, the Syriatum questioning has a lot of upsides and downsides. Like oral arguments are very long. Maybe should we explain just forum questioning, which, again, the Syriatum questioning has a lot of upsides and downsides, like oral arguments are very long. Maybe should we explain just for new listeners,

right, the Syriatum questioning? So, you know, it – Go for it. Well, just that it used to be a free-for-all in oral arguments. And then during the pandemic, when they stopped hearing cases argued in person, everybody stayed home, and there were telephonic arguments, they used this alternative format in which the justices took turns asking questions, just so it wasn't like the chief having to play traffic cop. And then when they resumed regular in-person oral arguments, they adopted this kind of hybrid where it's a free-for-all for a while. And at the very end, they go by seniority with each justice getting a couple of minutes to pose any remaining questions of each advocate. It makes really long arguments and it has sort of upsides and downsides.

Sorry, Melissa. So what do you think about KBJ going last? That's very helpful. Thank you for clarifying. I do think it's important, though, that she gets to be last because as the last person in the serial item questioning, she gets to do a lot of cleaning up and reframing. And here she definitely stepped in to challenge what we have been talking about, Kate, this whole idea that in order to uphold this appropriation, we have to show that there have been like 150 other similar kinds of appropriations. And this is part of an historic tradition of how Congress appropriates funds.

And it's understandable why the SG emphasized that for all of the reasons I've suggested. This is where the court is going and it's thinking. But I thought it was really great that she stepped in to say, like, the real question here is about the Appropriations Clause, like, and what Congress can do and what Congress's authority is under the Appropriations Clause. And that's pretty wide open and perhaps by design. So what we think of as history could play a role here, but it doesn't necessarily have to be determinative. And she also raised a very good point that having courts like the Fifth Circuit or this court rather than Congress step in to correct any problems with an appropriations by itself

raises a set of separation of powers issues that people seem to be relatively inattentive to. And that wasn't raised at all until she raised it in the very last couple of beats of the argument. I was so glad she did. It was like she did that in the affirmative action case, too. Like, doesn't this raise its own equal protection problem? Like, it's just like Congress is a big girl. Congress can do its own work. You don't need the courts to step in and save Congress. A big girl with seashell bikini. That's Congress and she can do a lot. Slowing red hair. But actually, no speaker. No voice and no speaker.

That worked even better than I'd realized. That's right. It's true. So good. So since we're talking about Justice Jackson, one note from the argument that I took away is that the animosity still so early in this term between Justice Alito and Justice Jackson is really something to behold. And here's what I think was the illustration of that during this argument. So Justice Jackson basically let General Prelogger know that she thinks it is quite misguided to require the government to identify an exact precedent, as you were just saying, Melissa, as Alito was basically doing in the quote that we just played a minute ago. So basically earlier in that exchange, the one that sort of I thought led Prelogger to a little bit display her annoyance, earlier in that same exchange, before he was pressing her for the best example. He had asked about whether Congress could allocate a trillion dollars to the FBI and then tell the president to spend it as he sees fit.

And Gorsuch had been bandying about similar hypos. OK, so here is KBJ posing a question to General Prelogger, but clearly responding to Justice Alito. Some of the questions that have been asked this morning seem to be requiring you to establish whether or not Congress can do certain things. What if Congress delegated the authority to determine a trillion dollars worth of funding and how the agency was going to do it? What if Congress set it up in this way or that way, et cetera? But I sort of thought that the burden was on them to show that Congress can't set up the agency in this way. And the reason I think that is because of the language of the Appropriations Clause

and the way in which it seems to give the legislature the prerogative of the purse. And here we have a statute in which the legislature has exercised that. So am I right that that's really all you need to say to win? I mean, you don't lose if you can't establish the limits in Congress's exercise of its authority, right? I think that's right, Justice Jackson. Okay, so she is basically talking about burden shifting, right? Like whose burden is this? I thought she says, right, the burden is on them to show Congress can't do this. And some of my colleagues seem to be suggesting the burden is on you to identify an exact analog. So then Alito later in his questioning of Noel Francisco,

basically responds directly to Justice Jackson. So let's play that clip here. Until the very end of the Solicitor General's argument, I thought I understood the limiting principle that she was advocating and the limiting principle that you were advocating. And at least at a fairly high level of generality, I thought there was agreement on what the limiting principle was, and that was a comparison of the setup that is before us with historical practice. And I don't think there's anything unusual about asking counsel in cases that come before us for the limiting principle of the argument that they're making. That's a basic question that we ask. I don't think it's a question of burden shifting. If I were her anger translator, I would have been like, say it to my face.

Yeah. I don't know exactly what was going on through her mind, but I did feel like I did want somebody to translate it. It felt like he was responding quite directly. And she also mentioned burdens again in her time with her final exchange with the Solicitor General, the one, Melissa, you were just talking about. And there, I think she's responding not just to Alito, but to all of her conservative colleagues, kind of like casually debating how the court should, for the first time ever, superintend Congress's power of the purse. So here is her mentioning burdens and then the clip that I think you were alluding to, Melissa, where she sort of brings in the separation of powers.

No, but I'm asking you, what I'm asking you is help me to understand why that's not what it needs. That's your burden, right? That's what the words seem to say. There's nothing in this constitution that's like scenario one, like the army clause, where Congress, where the framers have specifically restricted the exercise of authority that they're giving to Congress. So again, I am, you know, not mad that we get to watch Justice Jackson do her thing for the rest of the term. And I really wonder- I really do wish she had an anger translator.

If it's this bad this early, I just, I'm not sure where we are going to go in the next nine months. You know, I don't actually care about him. So so we're going to save most of our in depth discussion about the cases the court is hearing this week for next week's episode when we recap them. We did want to note that in one case, an employment law case, Murray versus UBS security is strict scrutiny. Super guest Isha Anand is making her Supreme Court debut, which we are super excited about. Also, the court is hearing another important voting rights case, Alexander v. South Carolina State Conference of the NAACP. This involves another type of voting rights claim that differs from the sort of claim that was at issue in Allen v. Milligan. In this case,

the South Carolina one, the claim is that South Carolina intentionally drew its districts to disadvantage Black voters. There is also a separate independent, what's called Shaw claim, where the appearance of the districts gives rise to the sense that race is, you know, a explanation behind them. So we will hear what the court says and does about the future of those types of voting rights claims in this case. This case is kind of about how, if at all, the court can disaggregate race from partisanship, given that racial polarization, a phenomenon where members of one racial group or another tend to vote for one political party or another could explain some of what the legislature did. But again, given kind of the correlation between the two, it's difficult to disentangle

them. A second thing which might come up at the oral argument is ProPublica ran a story about how Representative Clyburn was actually involved in the creation of these maps to, you know, the reporting went help his own district be safer while leading to a set of maps that disadvantaged Black voters throughout the state more generally, leading to more safer Republican seats. And at argument, Sam Alito is going to be furiously pressing two alternative theories. One is that these maps can't be racist because Jim Clyburn can't be racist, or are you saying Jim Clyburn is racist? Second, and alternatively, is that ProPublica is a bunch of lying hacks and who just engaged in smear jobs, and therefore we can't believe anything they say, including about me and Clarence. Should note, Clyburn filed an amicus brief in this case,

saying he wasn't substantively involved in the maps. So these are the cases the court will be hearing. And as Leah said, we'll talk at much more length about them in our next episode. Okay, let's dive into court culture. And there's a lot going on to dig into. decision in Allen v. Milligan and require Alabama to create a second majority-minority district where Black Alabamians could select the candidate of their choice after the court concluded that Alabama's map with just one majority-minority district violated the Voting Rights Act. But now, here comes, you guessed it, the Fifth Circuit. Cue Darth Vader music. The Fifth Circuit has decided to step in and rain on that parade. So listeners, you'll recall that after SCOTUS issued the order allowing Alabama to use its unlawful maps in the 2022 midterms,

the court did the same thing with maps out of Louisiana, where even though a district court concluded that the Louisiana maps violated the VRA, SCOTUS said, eh, not a big deal. It'll work for the midterms, might even flip Congress, and allowed Louisiana to use those illegal maps. You would think that in light of what the court eventually did in Milligan, here the Louisiana case would proceed in a similar way, that having affirmed the VRA's strength and noting that vote dilution continues to exist, this case would proceed in a way in which Louisiana would also be required to create another majority-minority district in its state. And yet this saga, every time it feels as though you can breathe a sigh of relief and like the rule of law is secure, like no, of course it isn't. And so the Fifth Circuit decides to step in here and say no. So you have the Fifth Circuit, specifically Judge James Ho and Judge Edith Jones, taking the

completely insane, extraordinary step of issuing a mandamus order, blocking the district court from proceeding with a hearing about drawing new maps to create a second majority minority district. I don't really have the words to say how crazy it is for a court of appeals to create a second majority minority district. I don't really have the words to say how crazy it is for a court of appeals to stop a case while it is ongoing and before the district court has finalized it by adopting a remedy where all the district court is doing is proceeding exactly consistent with what the Supreme Court just said had to happen in an essentially materially identical case. Mandamus is supposed to be for truly insane things judges do. If this district court judge literally decided to gag one of the lawyers and refused to allow them to proceed in this hearing, maybe a mandamus would be okay. I

mean, it's truly supposed to be that extreme, the circumstances in which mandamus is appropriate. And here, all you have this district court doing is proceeding in the ordinary course, and yet the Fifth Circuit has stopped it from happening. And this is the Fifth Circuit, so maybe we shouldn't be surprised. Stairs in June Medical Services versus Russo. Or Whole Woman's Health versus Jackson or any of the other Fifth Circuit's antics. More seriously, it does appear that Fifth Circuit judges experience an aesthetic injury whenever anyone attempts to enforce civil rights or remedy a Voting Rights Act violation. So that must be what's going on here. But the upshot of this decision, because the Court of Appeals has delayed the process of creating new

maps, is there's a risk that any decision drawing new maps would happen too late and too close to the 2024 election for the maps to be used. Because remember, Brett Kavanaugh adopted the nonsensical view in the Alabama case that the Purcell principle, the idea that courts shouldn't change rules in ways that confuse voters too close to an election. He adopted that principle in the Alabama redistricting case to bar a court from stopping Alabama from using illegal maps. So this is bad since it increases the odds that there will be yet another election under a set of illegal maps that disadvantage voters of color. It's almost like it's a concerted effort to disenfranchise people over and over and over again, almost. The Austin Chronicle had a really important story about some of the consequences

of the continuation of the blue slip practice in the Senate. The blue slip practice is this. Home state senators have what's essentially a veto over district court nominees. So even when the home state senators are of a different party than the president, they get to basically veto the president's nominees to the district court, essentially gumming up the works. Stanford law professor Mark Lemley and others have documented how the blue slip process has meant that Biden has not been able to nominate that many district court judges in states that have two Republican senators. And the Austin Chronicle reports that this has had really severe consequences in Texas in particular. In Austin, there's just one district court judge and there are two vacant judgeships that have not been filled in Austin because the blue slips allow the two senators in Texas, Senator John Cornyn and our favorite,

the gentleman from Cancun, to essentially veto any district court nominees. So this means that Judge Robert Pittman, who is the good Pittman, not the Pittman who likened the eviction moratorium to the emergent Nazi regime. Good Judge Pittman will have more than 1,000 cases this year because he's the only judge in Austin. So why, given this severe, severe lack of capacity in the Austin courthouse, why won't the Republican senators agree to nominate some district court judges to fill those slots in Austin? Well, perhaps it's because Austin is where the Texas legislature is located and where Texas government happens. And that means Austin is a place where the Texas government can always be sued. And so having district court judges from a Democratic president seems to be incompatible with some of the goals that the great state of Texas has for its policy. Senator Feinstein, of course, had a very impressive career. And there was some uncertainty about what this would mean because there were some reports

that Republicans would block Democrats from allowing her replacement to serve on committees. It doesn't appear that that is going to happen. Now, Senator LaFonza Butler has been sworn in. She is the first Black lesbian to serve in the Senate and right now the only Black woman in the Senate. And Republicans are not signaling that they will block her from committee assignments. And from the judge's perspective, the concern that she wouldn't be given committee assignments was a really serious one because Feinstein sat on the Judiciary Committee and the Democrats being down on that committee might have ground confirmations to a halt. But as we sit here recording, it does not appear that that is likely to materialize. But you know what will get blocked? Not Lafonza Butler, but investment funds that are trying to provide venture capital funding to Black women. So there is reporting that a VC

fund that directed venture capital funding to Black women who incidentally receive about 1% of all VC funding in the whole United States. This fund has been blocked by the 11th Circuit on the ground that providing such funds to black women is inconsistent with the court's ruling in Students for Fair Admissions versus Harvard. So I hate it here. Yeah, I mean, that obviously SFFA is a case about the use of race in higher education admissions. And coming out of the opinion, there were a lot of questions. How constrained to this context? How more broadly applicable is the court's reasoning? And this opinion represents, I think, the broadest possible interpretation and does suggest that other race-conscious programs

and policies and funds could be in jeopardy under an expansive reading of the Students for Fair Admissions case. So it's a deeply alarming opinion in its own right, and it's also deeply alarming in terms of sort of what it could look like. It's unright? I love that. Did you say unright? In its own right. It is also unright. And it is also unright. It is unright. You know, Justice Stevens used to use unwisdom, which was so quaint and adorable. He would describe things as displaying unwisdom. So unwisdom and unright. I'm game to use unwisdom, which was so quaint and adorable. He would describe things as displaying unwisdom.

So unwisdom and unright. I'm game to use both of them. Okay. So I have a question, which is did Clarence Thomas grow an ethics in the last couple of weeks? So Thomas recused from a case involving John Eastman's emails and the January 6th committee. This was a cert petition. It was denied. But we got a one-sentence note in

the denial that Justice Thomas took no part in consideration or decision of this petition. Justice Thomas conspicuously did not recuse in an earlier effort of Trump to keep his documents from the January 6th committee that were in the possession of the National Archive. So this is movement. And look, it's small. I am not suggesting that ethics is fixed at the Supreme Court. But I do think it suggests that the public outrage might be having some impact. Also, didn't Justice Alito recuse himself in a case in which he had apparently stock holdings? But that he's done in a long time and he very much did not recuse him more, obviously. But this moment, I think, you know, Sherilyn Ifill on Twitter noted that she thought this was likely due to the pressure that people have been putting on the court about these disclosure lapses and these ethical lapses.

And I don't know if they pay attention. It seems like they might be paying a little attention at the margins. We'll see where this leads. But again, as you say, a very small step. Can we talk happy announcements for a minute? Okay. Melissa? Well, they're like happy-ish given like the subject of the book. Okay, this is fair. There are two wonderful books that you guys are writing. So Melissa announced a couple weeks ago, we knew about this, but you guys just found out that she is doing a

book with Andrew Weissman called The Trump Indictments. It has a subtitle. I don't remember. It's like the historic charging documents with commentary. Which is sure to be brilliant, incisive, potentially funny. Is it funny? Is any of the commentary funny? I think some of it actually is funny. Basically, we're annotating all of the indictments so people kind of know what's going on. It's like the MST 3000 of The Trump Indictments with you and Andrew in the backs of your heads, just like giving us annotating all of the indictments so people kind of know what's like the mst 3000 of the trump indictments with you and andrew in the backs of your heads just like giving us running commentary right well i think of it as pop-up video where yeah that's a more contemporary was kanye west publicist it's like that so okay you know like and trying to explain a lot of the choices that

were made the prosecutorial choices that were made, and also to contextualize everything. So, you know, we have a quite, like, significant bit of writing that talks about other systems where holding former public officials accountable is not that unusual. It actually happens quite a lot. So we're trying to contextualize, trying to explain. And this book is going to come out in the end of February, right before the first trial is supposed to start. But I will say the editing process is dynamic. Like, it's a complete moving target as we continually revise and talk about gag orders and talk about people who are flipping. So I mean, I think we will be editing right up until the last minute. But we're really looking forward to it. And we hope it'll be a service to those who are going to follow the indictments closely. All right. So it's coming on February,

people can pre order, we will drop the link in our show note. It's available wherever you buy your books. I hope there'll be an audio book. I hope there'll be a smoothie. I don't know exactly. I think Meryl Streep wants to. Oh, I think Regé-Jean actually wants to read the indictments and your commentary. He's going to do Andrew. We're going to cast you. Regé-Jean and Meryl Streep, a conversation. Okay, I like this. And I want her to read it in her Miranda Priestly voice. Yes. Please try this case at a glacial pace. You know how that thrills me. Leah is also writing a book, not going to be out in February. It'll be a little bit of a longer

lead time. And I don't know, it's not available for pre-order yet. It's not available for pre-order yet. So we will definitely bring our listeners. But wait, it has the best title ever. What is the title? The title is Lawless, How the Supreme Court Came to Run on Conservative Grievance, Fringe Theories, and Bad Vibes. Love it. Excellent title. Excellent subtitle. And both these books are going to be – I'm going to send a signed copy to Sam.

X-X-O-O. Exactly. You should think about it. Thanks for making this possible. Exactly. My inspiration. You should probably dedicate it. You should probably not just sign it, but actually dedicate it to him in the printed volume. Yeah. possible. Exactly! My inspiration. You should probably not just sign it, but actually dedicate it to him in the printed volume.

Yeah. Justice Sotomayor always signs her books with, like, dream big. You should do that. Like, dream big. Oh, he is. He's dreaming real big. That's the problem. Right. So these are both really exciting developments. We'll keep you posted on both. And we will also have some new merch dropping soon,

so stay tuned for all of that. And as you know, we are big fans of Kariyuma. They make cool eco-friendly shoes that we basically wear 24 seven. And we're excited that Crooked is releasing a second collaboration with them. Kariyuma, cross, love it or leave it. There's just something about fall that makes you want to get new shoes. So why not get ones made with organic cotton canvas, natural rubber, cork, and recycled plastics? It doesn't hurt that they have tiny surfing dogs on them. They come in pink and black and feature a whimsical scene that'll absolutely put some pep in your step. Plus, Kariuma plants two trees in the Brazilian rainforest for each pair purchased.

So run, don't walk, but not until you get a pair of shoes at crooked.com slash store. They are hella cute. I do like them. They are. I love the little prints, like the what a week, the love it or leave it on the, I forget what the tongue of the shoe. I also love the vote. The love it or leave it ones are super cute.

They're really cute. It's like a darker base, which I think works well for like fall and winter. So yeah. Yeah. I'm slightly jealous. Like when are we going to have the carry Yuma strict scrutiny? I mean, like little justice,

too important or whatever. That'll be on there. So judicious. Or wait, what was the extra judicious, especially judicious, especially judicious, not especially judicious especially judicious not especially judicious that'll be on there dead dead dead yeah brought to you by originalism and more

just give us a call carry you about we're ready strict scrutiny is a crooked media production hosted and executive produced by leah lipman me melissa murray and kate shaw it's produced and edited by melody rowell ashley mizzuo is our associate producer. We have audio engineering by Kyle Seglin, music by Eddie Cooper, and production support from Michael Martinez and Ari Schwartz. Daily headlines remind us of how the conservative majority on the Supreme Court is moving fast and breaking precedents. But elsewhere in the lower courts where the media spotlight doesn't shine as bright, unseen forces are fomenting a quiet revolution. We Don't Talk About Leonard is a new series from ProPublica and On the Media. It explores the web of money, influence and power behind the conservative takeover of America's courts and considers the man at the center of it all.

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