Strict Scrutiny - Pigs, Prince, and Proven Innocence

Episode Date: October 17, 2022

Kate, Melissa, and Leah recap some of the cases argued at the Supreme Court last week: Reed v. Goertz, National Pork Producers Council v. Ross, and Andy Warhol Foundation for the Visual Arts v. Goldsmith.  Plus, there's a lot to catch up on in court culture, including judges trying to cancel cancel culture, and another round of Ginni Tonics. Follow us on Instagram, Twitter, Threads, and Bluesky

yeah it's recording now i'm good all right and so we're not talking about prince andy warhol prince or prince andy not prince andy yes prince and andy warhol all right i i do think what i wanted to add for that one we should do a little discussion of what do you think everyone's favorite prince song is like i think justice alito is a sexy motherfucker. What do you think? Shaking that ass. Shaking that ass. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Littman.

Today, we're going to be recapping the cases the court heard last week. We'll also note the grants. These are the additional cases the courts decided to hear for this term. And we are going to wrap up with something you've all been waiting for, a healthy and tea-filled court culture segment. So first, the recaps. This week, after a blockbuster opening, the court settled into a seemingly more mundane diet of cases. But even though these cases didn't have the obvious barn burner appeal of cases like Merrill versus Milligan, they still are very consequential. So the first case up we wanted to recap is Reed versus Gertz, a civil rights case about how individuals who are convicted in state courts

can get access to post-conviction DNA testing, that is, testing of DNA evidence after they are convicted. And even if you haven't heard about this case by name, you may be familiar with the person it involves, and that's Rodney Reed, whose case came to national attention when serious questions about Reed's innocence arose. So for people who aren't familiar with the case, Rodney Reed is a Black man who was sentenced to death by an all-white jury for the abduction, rape, and murder of Stacey Stites, a 19-year-old white woman. Reed's sperm was found inside Stites' body. So in 2019, the Texas Court of Criminal Appeals stayed Reed's execution indefinitely to review compelling evidence that Reed may have been

wrongfully convicted, including information that Reed's and Stites had a consensual sexual relationship, that Stites' fiance was abusive, and that Stites' fiance, when he was in prison for kidnapping and assaulting another woman while on police duty, allegedly said he killed Stites. Reed is seeking access to DNA testing of the belt that strangled Stites. So there's also some important case background, that is some previous Supreme Court decisions that are relevant to this case. So Leah, do you want to tell us a little bit about some of them? Yes. So in an earlier case called District Attorney v. Osborne from 2009, the Supreme Court held that people who are convicted in state court generally do not have a federal constitutional right to access post-conviction DNA testing, even if that post-conviction DNA testing could prove their innocence.

Unclear why the court is so hostile to allowing people to prove their innocence. But in that opinion, the court also held that if a state does provide access to post-conviction testing, its procedures must be fundamentally fair. Then in a later decision, Skinner v. Switzer, 2011, the court held that you can challenge a state's procedures for post-conviction DNA testing under Section 1983, the federal civil rights statute that allows people to sue state and local officers who violate their constitutional rights. And the constitutional claim underlying Skinner is that denying people access to DNA testing that could potentially exonerate them denies them due process of law when a state's procedures aren't fundamentally fair. And the specific question presented in

Reed is when the statute of limitations for bringing this kind of Section 1983 action begins. That is, the time period you have to actually bring a case that argues the state was wrong to deny you post-conviction DNA testing, and specifically whether it begins to run at the end of state court litigation regarding DNA testing, including any appeals or denials of motions for reconsideration, or at the moment the first state court, a state trial court, denies a request for DNA testing. One potential complication to this case is whether the court's previous decision in Skinner would come out the same way today. That decision was 6-3 with Justices Thomas, Alito, and Kennedy dissenting. Those justices would have held that a person seeking access to DNA testing can never use the general civil rights statute to challenge a state's failure to give them access to DNA testing. Rather,

they must challenge the state's failure to give them access to DNA testing in a federal habeas proceeding. And sorry if this is wonky and complicated, but it was also an issue in one of the cases the court heard last term. If you have to challenge the state's refusal to offer you access to post conviction DNA testing and habeas, there's a chance you won't be able to challenge the lack of DNA testing at all, given the many statutory restrictions on federal habeas review. And Justice Thomas, at least, seemed to want to relitigate Skinner at one point, asking Mr. Reid's counsel precisely what liberty interests your client has been deprived of. I think there's a little rich irony of the tenor of this case being the justices,

you know, having some idea that maybe there is no due process violation when someone who was convicted of a crime isn't allowed access to DNA testing that might exonerate them. And yet, in at least two confirmation hearings for these justices, There were allegations that the justices were somehow being denied due process when, you know, there was testimony that these justices engaged in... Liberty for me, not for thee. Right. I mean, you can't even reconcile this on grounds of like bro rights or dude process, given that the defendants in these cases are also men. So I'm just trying to find a through line here. I am struggling and failing. Okay, so the petitioner in this case, Rodney Reed, is the civil rights plaintiff who was convicted in state court. And he argues that

the statute of limitations begins to run when the state court litigation denying access to DNA testing finishes, including any appeals. And that's because, he says, a statute of limitations begins to run only when a plaintiff has a complete and present cause of action. And for a claim alleging that state law procedures violate due process, that doesn't occur until the state's process, including any appellate proceedings, actually finishes. At oral argument, Justice Kagan was kind of all over this idea. And there's a very practical reason that this view seems like a sound one, which is a concern about the consequences of a rule that says you basically have to sue the moment the trial court denies you access to testing.

And that's because that kind of rule would lead inevitably to parallel state and federal litigation. So you're challenging the denial in federal court while your state proceedings remain ongoing. And all of that, you know, might potentially result in federal courts adjudicating constitutional issues they might not otherwise need to decide, or as several justices raised at oral arguments, the federal courts would just stay the proceedings anyway. So it's not clear why you would force someone to run to federal court if they're not going to get anywhere until the state proceedings are done. And Justice Jackson was all over this point at the oral argument. So how did the argument go? It became clear at some point in the argument that the precise issue in this case was a little bit narrower than some people thought going in and actually than the way

the issue in the case was presented. So the dispute in this case seems to be about whether the statute of limitations began to run after an initial appellate court decision in Mr. Reed's case or after the appellate court denied Mr. Reed's motion to reconsider its decision affirming the denial of DNA testing. So a trial court denied Mr. Reed's motion for DNA testing and then the Texas Court of Criminal Appeal said that's right. Mr. Reed's motion for DNA testing, and then the Texas Court of Criminal Appeals said, that's right. Mr. Reed then sought reconsideration of that decision, and the Texas Court of Criminal Appeals rejected that motion for reconsideration. And then the Texas Court of Criminal Appeals said, among other things, you can't access DNA testing if the DNA has been, quote unquote, contaminated through subsequent handling. And there seems to be agreement that you couldn't

sue before the appellate court weighed in, that is right after the trial court ruling. And Justice Alito was really torn between two ways of interpreting the fact that this case is now about an ostensibly narrow issue. On one hand, he wanted to say, well, in most cases, there won't be much time between the state appellate court's original decision and when the appellate court denies a motion for reconsideration of that decision. So therefore, I'm just going to rule for the state and against the criminal defendant since it's no big deal. On the other hand, he also laid the groundwork for what we have previously called a peak-lito concurrence in which he would explain why if he somehow against odds ultimately did rule for the defendant, Mr. Reed here. This ruling would basically only be applicable to Mr. Reed and no other criminal defendant would benefit from it.

So Justice Alito was stressing this is going to be a case specific and really quite narrow question. Still, after the argument, it's not totally clear how this case is going to come out. You know, I take it it was somewhat clear where Justices Sotomayor, Kagan, and Jackson were. Harder to read, Justice Barrett and the chief and Justice Kavanaugh didn't ask any questions. So we will see what happens. At bottom, you know, it's important to remember the case is really about remedying wrongful convictions and convictions of the innocent. There are a lot of people who have looked very closely at the evidence in this case and who believe that Rodney Reed is innocent. And this case is really about whether he'll be able to get access to the DNA testing that could prove that. And I was actually really glad so much of the case was about these kind of technical

procedural questions. And Reed's lawyer at the very end kind of brought back in some of the evidence that Melissa, you mentioned earlier on on that raises real doubts about the potential innocence of this individual who is facing death at the hands of the state. And, you know, the case is not just about Rodney Reed. We know that innocence convictions have wildly disparate impacts. So the National Registry of Exonerations recently issued a report finding that Black defendants are seven times more likely than white defendants to be wrongfully convicted, and the risk increases even further if the murder victim was white, as was the case here. We should also note that the court's own record on wrongful convictions isn't great. So 30 years ago, Justice Scalia wrote an opinion criticizing one of his colleagues,

Justice Blackmun, for concluding that the death penalty was unconstitutional. Justice Blackmun said that he would, quote, no longer tinker with the machinery of death, end quote. He wrote that the problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants. In response, Justice Scalia wrote that in that case, Callens versus Collins, Blackmun had chosen a relatively mundane death penalty case to announce his view rather than a case that involved more brutal facts. And then he went on to invoke the facts of another case that wasn't really even on the court's docket at the time. It was about the rape and murder convictions of Henry McCollum. When McCollum's case eventually did

come before the Supreme Court, Justice Blackmun would have heard the challenge, but Justice Scalia voted to decline certiorari. And in case you couldn't tell where this is going, Henry McCollum would later be exonerated of the crimes he was convicted of and on the basis of DNA testing. You would think that there would be some kind of humility in light of that experience. And yet. Humility for thee, but not for me. I see how this works. Another case we really wanted to recap was National Pork Producers Council versus Ross, a major dormant commerce clause case.

This is like the Charlotte web of cases. Every time I think about this case, all I think about is some pig. I think. is some pig. I think, well, okay, so we'll go into like my alternative regulatory regime in order to convey some of what California is trying to do. But it involves Charlotte's Webb and the movie Babe. But let's get out the facts. I miss my mom. That'll do, pig. Okay, so National Pork Producers Council is probably the biggest Dormant Commerce Clause case on the court's docket since the Swedenberg case in 2005, which was about interstate shipment of wine. And more recently, the court heard another case that was about the collision of the Dormant Commerce Clause and the 21st Amendment in 2019, Tennessee Wine and Spirits versus Thomas. So this is a challenge to a California statute that prohibits any business from selling, quote unquote, pork meat in California that the business knows or should know is the meat of an animal that was confined in a cruel manner or is the meat of the offspring of an animal that was confined in a cruel manner. And the stated purpose of the law is to prevent animal cruelty and the risk of foodborne illness. And if you've been living in California recently, like this has all been sort of a web of regulation

that has really been clustered around foie gras for the most part. California has banned foie gras because it involves treatment of animals that would be considered cruel. But this isn't about foie gras. It's about pigs and pork meat. And really like horrible conditions in which pigs are kept, right? These are designed in part to prevent, you know, gestation crates that confine pregnant pigs in like two by seven foot cages for 400 pound animals. It's just, it's just really.

It is also wild that the conditions that you're describing, this is not like an isolated event. There are, I think the briefing says that there are half a million pigs killed every day in the United States. And California voters just basically decided that they want the conditions under which those pigs, you know, live and die to be better than they generally are. So the issue in this case is whether this California statute violates the dormant commerce clause. So, Kate, what is this? Oh, you're going to make me lick the foundation. Yes, I'm going to make you do it.

Everyone, don't fast forward. This is important stuff. What is the dormant commerce clause, the sleepy commerce clause? What is it? It is, yeah, or the negative commerce clause, as Justice Stevens used to call it. It is not, despite its name, a clause at all, which is the first confusing thing, but not in any way the last about the Dormant Commerce Clause. It's basically a principle that the court has implied from the text and the structure and the history of the Constitution that is understood to limit states' ability to burden interstate commerce. So specifically, states under the Dormant Commerce Clause are not supposed to be able to discriminate against out-of-state commerce. So specifically, states under the Dormant Commerce Clause are not supposed to be able to discriminate against out-of-state commerce. So California pretty clearly couldn't

say you could only sell milk from California farmers, but not from Wisconsin farmers. It couldn't impose a tariff on milk from Wisconsin, but not milk from California. And states can't unduly burden interstate commerce either. So that would be by enacting regulations that have minimal benefit, but impose substantial burdens on interstate commerce either. So that would be by enacting regulations that have minimal benefit, but impose substantial burdens on interstate commerce. So the pork producers in this case argue that the California law violates the dormant commerce clause in two maybe different ways, maybe two, you know, maybe these are two different versions of the same argument. It wasn't totally clear either in the briefing or the oral argument, but there are basically two main arguments. One is that this California law violates the extraterritoriality

principle of the dormant commerce clause. That is, the pork producers argue that the clause contains this principle that states can't regulate transactions that occurred outside the state, and that's what's happening here. By prohibiting sales inside the state, they're basically imposing their preferred regulatory scheme on other states. Almost like abortion. Right. Well, we'll get there, definitely. Sorry. Stares and reproductive rights. Right. No, no, no. Yeah, it's certainly related. But so in terms of the basic arguments on the table, the producers also argue that the California law is invalid under a balancing test that weighs the burdens on interstate commerce against the benefits conferred by law.

And that is something known as pike balancing. And that's not a test the court has used to strike down a state law in decades, but it was all over the oral arguments. Well, it's probably been abandoned, Kate. We're going to find out. Anyway. In a Dropbox. Yes. No books, just babies or pipe balancing. This case will be interesting to watch because some justices have questioned whether the Dormant Commerce Clause is actually

a thing. And by some justices, I mean my favorite textual healer, Justice Clarence Thomas. So this could be one of those weird, strange bedfellows, odd lineup moments where you have some justices like Justice Thomas who don't believe the Dormant Commerce Clause is a thing joining up with other justices like the Democratic appointees who are going to say, I imagine, the Dormant Commerce Clause doesn't prevent states from adopting health, safety, and welfare laws about the kinds of businesses that are going to be conducted in their state, even if those laws have effects outside of the state. This is an important case that is about states' ability to enact health, safety,

and environmental rules, given that most state laws or regulations are going to have some effect on interstate commerce or impose some burdens on interstate commercial enterprises. You know, you can think about climate issues in states where there might not be a lot of car manufacturing, but the state imposes emissions limits. Like, could you say the state is effectively regulating out-of-state or interstate commerce? You know, that could really limit states' ability to enact environmental or climate regulations. Or think about safety regulations that limit materials you can use in construction. What if those materials tend to be made out-of-state? And as I suggested earlier, another potential important aspect of this case are its possible implications for access to abortion and the ability to travel interstate to obtain an abortion.

If the court says the only legislation that violates the Dormant Commerce Clause is legislation that's designed to stick it to out-of-state commerce or to give some economic advantage or protection to in-state businesses rather than legislation enacted for health, safety, or morals, then maybe that would mean the Dormant Commerce Clause doesn't prohibit states from penalizing interstate travel to obtain abortion. So potentially a big thicket there. So how did this argument go, Kate? It was a difficult argument to read. I genuinely have no idea how the case is going to come out. So maybe let's start by just canvassing the different positions

that are on the table, and then we can get into some moments from oral argument and speculate a bit about what the justices might be thinking. I think some of them are feeling genuinely cross-pressured about this case. So at some points, the challengers to the law, so that is the pork industry, supported, interestingly, by the federal government, seem to be arguing for some combination of the following propositions. So one, a state can't enact laws premised on the view that particular out-of-state activities are immoral. So here the problem with the California law would be that the reason that California enacted this law is because California thinks housing pigs in these conditions is immoral and California doesn't want to be complicit with this kind of immoral activity. But the view is California just can't project its morals in this way onto other states. So stated this way, the implications for laws regulating, say, medication abortion being provided out of state or residents

obtaining out-of-state abortions are clear. Other times the position was, well, maybe California couldn't enact this law for any reason, given that the burdens on the pork market are so severe. So it's not just that it's its moral opposition, whatever the reasons, California can't enact a law like this. Or maybe it couldn't enact a law premised on the immorality of these transactions, given the significant burdens this law imposes, but another similar law that was less burdensome, maybe because it was a state with a much smaller market, say, for pork products, would be permissible under the Dormant Commerce Clause. All of these arguments seem to be on the table. Again, as Kate suggests, all of these theories are being tested during this oral argument.

So Justice Sotomayor, for example, pointed out how the California law isn't just about morality. It's also backed up by health and safety rationales. And I wonder if she'd watched that movie. What was it, Pandemic or Contagion? The one with Matt Damon and Gwyneth Paltrow, where a huge pandemic starts because of the way a bat is like a dead bat flies into a pork processing plant. Do you remember this? It was like, no. All of a sudden, it was the number one Netflix film. And that kind of sounds like Borat. Yeah, that was the one. And it was all happening in Minneapolis. I thought you would have known this, Leah. But basically, the whole movie, you find out at the end is set in motion because there's like a poisoned bat who

like a pig eats, and then it just sort of sets off this whole thing. Anyway, I want to ask a different topic. But Fast food nation is also like has some truly horrifying depictions of the conditions in which, you know, most meat is, you know, lives and dies in this country. Well, I was just thinking maybe she'd seen this movie and she was like, you know, like we could have another pandemic because of like these poor conditions. I just wondered, you know, justices are just like us. Just us. Anyway, Justice Kagan also was testing out some of these theories. She wondered whether it would be problematic for the court to say that the burdens here are severe because California is a big market. Because on a theory like that,

smaller states like Wyoming, for example, could enact these kinds of laws, but bigger states like California would not be able to. And so Justice Kagan was sort of playing that out. She also wondered why it was coherent for the challengers to say California could ban pork being sold in the state, which would have an enormous effect on the pork industry, but couldn't only ban pork made in particular ways from being sold in the state. As she said, and I think she's right, it doesn't follow. The newest justice, Justice Jackson, wanted to know whether it mattered that California might be able to further an interest in avoiding its residents being morally complicit in this method of raising

pork by requiring pork that is produced from immoral conditions to be labeled rather than outright banning it. So let's play that clip. All right. So with my other set of questions is about the Pike balancing. So let me ask you, would there be a problem under Pike if instead of banning sales based on morality concerns or whatever else, California allowed the sales but required the pork to be labeled? You've said a couple of times that you suggested that labeling was fine. I kind of love this. Again, master's tools. So this is what I was thinking about, like, how about California instead enact some sort of informed consent requirement where they require someone to like, sit down, watch Babe, right, read Charlotte's Web, and then watch Charlotte's Web and then wait 24 hours before purchasing any pork that has been raised in inhumane conditions. Or alternatively, someone's like, you know, I want to be exempt from this law because it would make me complicit in a sin.

Right, exactly. I love the energy here. The second lawyer defending the law. So Mike Mongan, the California SG, was the lead lawyer defending the California law. But there was also a 10-minute argument by an amicus from the Humane Society, I think. And he was very much seeking to try to appeal to the justices by suggesting, in honestly what felt like kind of a strained way to me, that this kind of law was distinguishable from all the other kinds of laws that the justices might have been worried about opening the door to because we have this deep history and tradition of regulating the conditions of production of meat and food, but meat in particular, and that there's like deep theological foundations for doing that. And it felt a little bit like pandering to me, quite honestly.

Is it though? I mean, like Schechter Poultry was like part of the whole flap around Schechter Poultry was that it regulated the conditions under which chicken and other poultry products were manufactured and it had a real consequence on kosher slaughterhouses. Right, the Schechter family was a kosher butchery and like on Flatbush. But that's not the basis on which it falls. Do you think that's like the deep underlying theory of Schechter Poultry? No, I don't think it's the deep underlying theory of Schachter poultry. I just think it's like it was an interesting aspect of Schachter poultry that isn't actually part of the sort of normal discourse of it. But you mean like there's a

religious underlay to it that we don't really hear about? But yes, there were certainly those strains in the last 10 minutes of the argument. Justice Jackson was all over this possibility of labeling pork. And at one point it generated this kind of funny observation from Justice Sotomayor. So let's play that here. We have marketed already pork marked as organic, crate-free, antibiotic-free, and beta-agonistic-free. I have no idea what that means. But I know it's there. I've seen it in supermarkets, okay? I just loved her signaling that she is still the people's justice and she personally goes

to the supermarket, which I don't think most of them do. And I totally believe that she does. I actually know that she does. I know that she does. But you can say no more. You know, when she's not in D.C., she's like hanging around New York City and like sometimes she pops into bodegas and stuff. And, you know, I mean, she knows about crate free. You know, she knows all about that stuff. But in some ways, the most revealing exchanges in this oral argument came when the justices began to consider the implications of California's argument that states can limit in-state commercial exchanges based on the idea

that out-of-state commercial activity is immoral. So Justice Kagan wanted to know what the challengers and the federal government thought about this possibility. So let's roll the tape. I mean, just to take an extreme example of this, Mr. Needler, suppose we imagine ourselves back into slavery days. Would it have been impermissible for a state to have said we're not going to traffic in products that have been produced by slavery? I think the logic of our position would say yes. And then, of course, the justices thought about the present-day implications. And it's just, I don't know, really revealing to hear what different justices were thinking about. That is, what they're wondering if states can do, what they think states might try to do,

or in some instances, maybe what they think a state should be able to do if California's law is constitutional. So, again, stares in reproductive rights. Extremely interesting to hear Justice Barrett on this, right? So let's play a clip of Justice Barrett wondering if California is allowed to do this. California or other states might apply this method of regulation to other contexts. So could you have California pass a law that said we're not going to buy any pork from companies that don't require all their employees to be vaccinated or from corporations that don't fund gender affirming surgery or that sort of thing. I mean, I feel like we need to take a beat to talk about this.

On the one hand, her use of I think the correct term gender affirming surgery is an interesting one. On the other, it did suggest to me that the information silo in which she resides is one in which the moral panic is in full bloom. So that, you know. Stares in Leslie Rutledge. Right. Leslie Rutledge is the attorney general of Arkansas who recently had a great interview with our good friend, Jon Stewart. Check it out. Yeah. Has Justice Barrett checked it out, do you think? I'm not sure that exists in her information silo. Probably not. She put a big black blob over Jon Stewart. It's just Leslie Rutledge. Yeah, she only heard Leslie Rutledge's comments. No idea who was asking the questions.

Wah, wah, wah, wah, wah. And then Leslie Rutledge speaks. What about Coach Kavanaugh? Didn't he have something to say here, too? Yeah, so let's play him, too. So he raises the following possibility. So what about a law that says you can't sell fruit in our state if it's produced, handled by people who are not in the country legally. Is that state law permissible? And if not, how is it different from this law?

And here's what comes to Sam Alito's mind when he thinks about morals legislation involving commerce. If you're asking yourself what Sam Alito thinks is immoral, listener, prepare not to be surprised. A state says we don't want a particular product to come into our borders because we think it was produced in an immoral way. So, Your Honor, perhaps... Why doesn't that apply equally to a law that says you can't bring any products into our state if they were produced by employees who did not have the right to work, the right not to join a union? Yes, it appears.

Sam Alito thinks that union regimes are immoral. But I thought he was the champion of the working man. Or is that only when they are defenseless and unarmed on the New York City subway after commuting from a hard day's work in Manhattan to the outer boroughs? And then a union official tells him to get the working man out of his mouth. Take my name out of your mouth. Yes. Sam Alito also seemed committed to searching for a narrative in this case about why California is a villain. And, you know, I appreciate that Sam Alito is always on message. Like, I mean, he is prosecuting the case like the federal prosecutor he was.

At various points, he called California both a behemoth and a bully. So two points on that. One, projecting a little bit. Oh, I mean. Not a behemoth, but a bully. The C-A in California definitely stands for cancel culture. It made me want to go back, and of course I haven't done this, but there have been all of these gratuitous invocations in oral arguments and in opinions. Of course, the one that springs to mind is that weird line by Justice Scalia, I think in his Obergefell dissent in which he's like, the nine lawyers on this court have made the law for all of us.

They're all from the East Coast, except for California, which doesn't count. Do you remember that? Yes. This was sort of in that vein. I feel like you actually could put together- Coastal elites, not real Americans, like the son of Jersey, Sam Alito. Exactly. Yeah. They're very fixated on California. And Wyoming. I mean, Wyoming is the ostensible victim of California's throwing its weight around.

Wyoming's not even close to California. They're like five other states in between. Is there Liz Cheney, like some sublimated something going on here? I have no idea. Like there are other red states close to California that would have been easier to imagine being bullied. Idaho.

Let's talk about Idaho. Yeah. Yeah. Idaho. Getting knocked around by California all the time. Happens all the time. But more generally, what the justices seem to be getting at was a concern about states using laws that are structured like California's to pick fights with other states.

So here is Justice Kagan articulating that concern. You know, one, California can do laws. You have to be pro-labor. And Texas can do laws, say, pro-labor union. And Texas can do laws that say you have to be anti-labor union, you know, close shop, open shop. You could have states making immigration policy essentially through these laws. You could have states doing a wide variety of things through the mechanism of saying, well, unless you comply, you can't sell goods in our market.

And we live in a divided country. And the balkanization that the framers were concerned about is surely present today. And I think that the real power of Mr. Needler's examples were, do we want to live in a world where we're constantly at each other's throats? And, you know, Texas is at war with California and California at war with Texas. All right. So what's going to happen with this case? Do we have any predictions? I have no idea. I am slightly concerned about an overly broad ruling that calls into question,

like, all morals legislation, which I also think is a weird position for conservatives to take, given the extent to which they have suggested states have wide latitude to enact morals legislation under, say, like having the effect of burdening primarily out-of-state commerce on the idea that the state just doesn't like how other businesses do business or the effects of other businesses. So maybe some group of them will focus on this being at the motion to dismiss stage where you take the allegations and the complaint is true. Justice Jackson, being a civ pro maven, seemed to know this, but I really don't know. Yeah, I mean, I mentioned the justices feeling or appearing cross-pressured, and I have to say I feel the same way about this case. Like, they seem to me really unhappy with all of the arguments on the table, right? They seemed unhappy with the challengers and the federal government's extremely broad arguments that would make it really hard for states to do all kinds of things they want to do and that they do do now, but they seemed also really unhappy with California for failing to offer them some sort of bright line that divided this as permissible from states impermissibly using regulation like this to project their

values onto other states in ways that would be genuinely burdensome. I do think it seems like California has to have some sort of authority to regulate in ways that it deems necessary to protect its population. And on the other hand, I do really worry about balkanization in general, and in particular, that a win for California might open the door to states being able to project anti-abortion policies out of state. And the federal government repeatedly invoked this concern about balkanization that I think is very clearly about a lot more than pork production. And I think it's a real concern in this case. So I think this is going to be a case like Ramos, which was from the 2019 term, where we saw another really weird sort of lineup of justices with Justice Kagan

joining the Chief Justice and Justice Alito to uphold Apodaca, which was a 1972 case that allowed for criminal convictions to proceed on non-unanimous jury verdicts. And we talked in 2019 about why Justice Kagan was sort of aligned with the Chief Justice and Justice Alito. And, you know, we speculated there it was because of Roe about upholding past precedents, even when there were sort of compelling reasons like, for example, racial discrimination underlying the rule around non-union mystery verdicts. She nonetheless felt it was important to sort of stay the course because of Roe. And I think, again, you're right, Kate. I think anti-abortion legislation is looming all over this. And this is not going to be a case about pigs and pork products. It's going to be a case about what the pigs and the pork products mean for interstate travel in order to obtain abortion care.

And I think you may find the Democratic appointees lining up with some of the people that I think we don't expect them to line up to because, for once, there's interest convergence around anti-abortion and sticking it to California. But like on the other hand, that could imperil climate, right? Or environmental regulations, where again, like states are regulating out-of-state commerce. But this is the difference.

But this is the difference, I think, between where the six-justice conservative bloc and the three-justice minority are. Like the minorities, like they've got a finger in the dike. Like this is like the immediate threat is abortion. And maybe they can't play a long game and think about climate and all of these other things, because the real immediate

threat is, you know, Missouri is going to pass some law that makes it illegal to leave the state in order to seek an abortion. And they're just trying to deal with that in the short term. And, you know, they're going to figure out climate when they get to it. But I mean, that's one of the differences of being so overwhelmed in terms of the numbers of this court. You can't actually play a long game. Yeah. There's also, I think, some interesting methodological currents in this case in that a lot of these Dormant Commerce Clause cases are all about intent, right? Like did the state intend to discriminate against out-of-state commerce? And today's textual-ish court purports not to care about

intent. And I thought there was kind of an interesting line of questioning by the chief justice about this was a ballot initiative and the ballot materials reflected two considerations, this morals concern, but also health and safety concerns. And he sort of said, you kind of take those at face value. And Roberts was sort of probing, well, what if some people voted because of morals and some people voted because of health and safety concerns? What do we do with that? And, you know, I'm not sure what this court will do with the kind of intent focus of the Dormant Commerce Clause cases in terms of its current approach to discerning the meaning of legislation. Well, especially because of the ballot initiative. I mean, maybe they find a way to do this narrowly because most states don't

have ballot initiatives as a mechanism for creating policy. And it would be cleaner to make a more broad rule using just like sort of ordinary representative democracy as the model for passing laws. A fascinating case. And we will see. Some picked. So the court heard a couple of other cases that we will just briefly note. One was Andy Warhol Foundation for the Visual Arts versus Goldsmith, a really important copyright case about copyright protections for art. So briefly, the Copyright Act protects original works, but it also allows fair use of copyrighted works. And to determine what constitutes fair use, courts typically consider the purpose and character of the use, including the extent to which the secondary work is transformative.

And the question here is whether a work is transformative when it conveys a different meaning or message from its source material, but where it is recognizably derived from and retains the essential elements of its source material. So here, a photographer photographed prints and licensed the photograph to Vanity Fair. Vanity Fair then commissioned Andy Warhol to create something depicting prints based on the photograph, and it ran the Warhol piece in a magazine attributing it to the photographer and to Warhol. Warhol, however, created additional works commemorating prints. However, he did so without any attribution to the photographer and to Warhol. Warhol, however, created additional works commemorating Prince. However, he did so without any attribution to the photographer. The question now is whether that was fair use, whether the Warhol pieces were transformative, when more specifically, whether a work is transformative because it conveys a new meaning, even if it is

recognizable as related to an earlier piece. If you look at the pictures, I think it's super interesting. You know, the coloring and emphasis of the Warhol painting make prints look different, you know, and it evokes like a different image or feelings about prints, you know, than if you were just looking at the pictures as a Minnesota resident, right? This matters a lot to me, although it wasn't clear whether from the argument the justices themselves are Prince fans, or at least not all of them. So let's hear some of the justices tell on themselves.

Let's say that I'm both a Prince fan, which I was in the 80s, and... No longer. No longer. Well... So... longer? Well, so only on Thursday night. But let's say just so rare. I think my colleague, Justice Thomas, needs a lawyer and I'm going to provide it. I see the first.

So nor is it clear that the justices are comfortable with a legal test that asks about like the meaning or message of works of art and whether a new work, you know, change the meaning or message of a prior work of art. You know, they're a little concerned that this would involve them staring at paintings or photographs and asking, like, what's the vibe here versus, like, what's the vibe there? And they only want to do that with laws. They don't want to do that with art. Exactly. Exactly. A part of me, like, is really dying thinking about the justices, like, sitting around looking at a piece of art and saying, what does this mean to you? What do you see? And Clarence is like, I see a stolen election. And Alito is like, I see cancel culture. And it's just that that's how I'm envisioning that. And Jess is sort of my words, like, I see a multiracial democracy. They're like, no,

no, definitely see cancel culture. I do not. I affirmatively don't see it. Anyway, there are a lot of briefs filed in this case and from IP scholars on both sides of this issue. But I did want to call out my NYU colleague, Amy Adler, who filed a brief that was done in conjunction with Mark Lemley, who is not only a law professor at Stanford, but also a member of the firm Dury Tangri in San Francisco. And they filed a brief on behalf of art law professors. So we had IP folks in here. We had copyright folks. We also had quote unquote art law, which is an amalgamation of all of those things. And so lots of interest from the Academy on this one.

What can I say? All of our colleagues, they love Prince. Even if Justice Thomas doesn't any longer. How do you stop loving Prince? I actually think this is like, I think Justice Sotomayor is absolutely right. Not your shoe size, Clarence. I mean, I think he does need a lawyer. Who stops loving Prince? Who does that? Nobody does that.

Do you know what my greatest regret in life is? You had a chance to go see Prince live and didn't. No, that's exactly right, Kate. He came to Oakland to do a couple of small shows at the Fox Theater. And I had tickets to go, but then I had some public interest auction event, like where I was having students come to my house to play Trivial Pursuit. And I gave my tickets to someone else because I'm like, I'll just see Prince another time. And then he died. Everyone thought you had many, many years of Prince making music to go. So that was not, you were not like wrong to assume that, but I'm so sorry.

Some of us went to Paisley Park. Like sometimes when I see these students, all I think about is just like, I hope they appreciate what you gave up. Wait, so you saw him, Leah? Yeah. Paisley Park, right? I grew up in Minnesota. Come on. That's amazing. I mean, like Leah, can you imagine Leah as a young girl in a raspberry beret, just waiting around the gates of Paisley Park? Like, I totally see it.

Honestly, like, after he passed away, I was one of those people that put, like, little purple capes and guitars around, like, the little ducks around the lakes around Lake Harriet commemorating Prince. This is what it means to be a Minnesotan. Wait, these were, like, duck statues or actual, like, actual? No, yeah. Not real live ducks. This is not an example of animal cruelty. No. No, these are animal statues or actual, like actual? No, yeah. Not real live ducks. Animal cruelty. No, these are animal statues. Okay, okay.

That sounds better. Yeah. Yeah, it's my greatest. It's one of my greatest regrets ever. It's fake. That's fair. Yeah. It was a great night of Trivial Pursuit.

Obviously, I killed those students. I destroyed them, but I could have done that anytime. All right, people. All right, Pete, please. All right. Shifting gears, briefly one more case to mention, Helix Energy Solutions v. Hewitt, which is a case about whether a supervisor who makes over $200,000 a year is entitled to overtime pay under federal regulations implementing the Fair Labor Standards Act. And this is a question because he was paid on a daily rate as opposed to a weekly rate. And this case had what might be my favorite moment from oral argument this week. So let's play that here. So I'm not sure I get it, Mr. Clement. So 601 sends you to 602 because 602 tells you

what salary basis means. That's we can all agree on. Okay okay but can i just stop you to say okay um this is the energy i want to bring to podcasting and life like it's like what you were no can i ask you to do this no right like is this okay no um okay, no. Eat your food. Shut up and eat your food. Exactly. I just like, I love this energy. You thought they were going to be down and out after last term, and they came back like ready to pick a fight every single time. I love it. By the way, NYU has a campus. Now shut up. Exactly. You know what actually made me wonder? Do you guys remember? So Kagan time. I love it. By the way, NYU has a campus. Now shut up. You know what actually made me wonder? Do you guys remember? So Kagan invited Clement to argue in defense of the Consumer Financial Protection Bureau and CELA law. Yeah, CELA. That was his J-Lo moment. J-Lo on the pole.

Wait, what? You weren't there for it. Oh, God. She wasn't there for it. Wait, just- That was the live show in BU where we talked about that. Oh, I listened to it, but I don't remember it. We talked about hustlers a lot, but I don't remember Clement being part of the discussion. He was actually really good in that oral argument. He was really good. We were like, he was like J-Lo working the pole. Okay, it's coming back to me, yes.

He was, but was unsuccessful ultimately. And does she hold it against him? I really just wondered. So is JLo. She didn't get it. It's all connected. Justice Kagan was really on fleek this sitting. There was also this moment from the Andy Warhol argument now that we're recapping greatest hits. So listeners, turn up your volume to listen to this oral argument clip. And in particular, listen for what comes after the advocate Lisa Blatt answers Justice Kagan's question. So that is different from what the Second Circuit said, because I thought the Second Circuit took it out of the analysis entirely, said it was irrelevant to the question. No,

and I think that's very unfair to three members of Article Three who three times said meaning and message is relevant. Three times. Yes. Well, I find it insulting to the Second Circuit. So I have many nightmares about the Supreme Court. One of them is definitely having Justice Kagan incredulously or mockingly or derisively repeat something back to me that I have just said. I also think we might need to change the Overton window a little bit on what insulting to members of Article 3 means. All right. We should go to court culture. I feel like we've actually already transitioned there. We're there. I can confirm. Yeah. So, you know, that was the October sitting, a Supreme Court getting back in the swing of things. You know, new term, there were some rough patches, especially coming back from a long

weekend. The Chief Justice almost forgot the Siri Adam questioning format. So let's play that clip here. Well, how about I feel- Thank you. Thank you, counsel. Mr. Needler? Chief? Oh, I'm sorry. Very anxious to hear from you.

Also, just stepping back for a second on the October sitting, there were 22 advocates arguing in the sitting. Four were women. There were literally as many women arguing in the entire October session as there are justices, women justices on the Supreme Court. Dewelle Ross, you know, who we had on the show last week arguing for the NAACP LDF, may have been the only Black attorney arguing in the sitting, just like extremely dismal diversity at the Black turn. But again, as with the justices, they were outnumbered, but not outclassed, and they were fantastic.

All right. All right. Moving on to the grants. The first week of the term, we learned that the court had decided to just, you know, accelerate, step on the gas and start granting some big, big grants in a bunch of additional cases that are really going to be consequential. So the first of these big grants is a challenge to so-called Section 230 immunity. And there are several cases involving this.

Section 230 is a provision of the Communications Decency Act that immunizes interactive computer services like Facebook or Twitter for publishing information provided by another information content provider like a Facebook or Twitter user. And it's recently come under attack, or at least has been criticized from a lot of different angles, some on the left and some on the right. But basically, everyone's mad at Section 230. And the rights attack on Section 230 has been driven by the claim that big social media companies censor or discriminate against conservative speech. So they are huge, huge participants in this cancel culture against conservatives. And the left argues that, in fact, Section 230 doesn't really give these platforms enough latitude to really deal with disinformation and things that are actually

really harmful or misleading. And so just basically everyone is unhappy. And so one of the grants here is a case called Gonzalez versus Google. And the question here is whether Section 230 grants immunity to information service providers when they recommend or promote certain content rather than publish it. So this is about amplification of certain information. And there's another Section 230 case that the court also granted certiorari in, Twitter versus Tamna, which involves related issues, though, under Anti-Terrorism Act and whether service providers can be held liable under that act for, again, providing access to their platform. We should just say that we are concerned about these grants, right? This case,

these cases in the hands of the court, has really big, like, start the rapture energy. Yes. I think it's fair to say. Like, zero doubt that Sam Alito is going to bring up cancel culture. Cancel culture. Yeah, no. All over these arguments. So, yeah. The court also decided to hear Santos-Zacaria v. Garland, immigration proceedings. Here, the Board of Immigration Appeals allegedly impermissible fact-finding. The court also granted several important labor law cases. These are concerning,

like the Section 230 cases, given the court's pretty reliable anti-labor bent. So one of them, Glacier Northwest versus International Board of Teamsters, is about when you can hold a union liable for the economic costs or consequences that result from a labor strike. And the idea that, again, you can sue a union and impose monetary penalties on them for organizing a strike is potentially really disastrous and limiting of labor power and union organizing. So we're watching that one as well. The court also rejected a request to hear an important case involving race discrimination in criminal proceedings that I wanted to highlight, Thomas versus Lumpkin. So this is a case the court refused to hear. Justice Sotomayor dissented, indicating she would have heard the

case. She was joined by Justices Kagan and Jackson. And this case involves Andre Thomas, who was sentenced to death for the murder of his estranged wife, their son, and her daughter from a previous relationship. Thomas is Black, his wife was White, and their son was biracial. He was convicted and sentenced to death by an all-White jury, three of whom expressed firm opposition to interracial marriage in their written juror questionnaires. Despite their declarations of bias, Thomas's lawyer did not object to their presence on the jury and didn't even question them about their indicated bias. And the claim that Thomas wants to raise here is whether he was provided ineffective assistance of counsel for a lawyer who failed to object to these

obviously biased jurors serving on the jury. And the Supreme Court is like, yep, nope, seems fine. Good to us. Nothing to see here. Okay. And now we've gotten to what you've been waiting for, a very meaty and interesting court culture segment. And Leah, I've been dying to talk with both of you about the news emanating from New Haven. Yale Law School has been canceled. So can you tell us more? It's finally time to talk about the Federalist Society and cancel culture. So Judge Ho, a Trump appointee on the Fifth Circuit, announced that he is trying to cancel Yale Law School and specifically that he will not hire law clerks from Yale and is encouraging other judges to do the same. Why, you ask? Well, he says it's because Yale is engaging

in cancel culture. So irony isn't dead after all. This is very meta. This is. Canceling Yale to protest cancel culture. Yes. It's performance art. I mean, I have to say, as a student, I tried to cancel Yale Law School all the time. So if Judge Ho is going to succeed where I did not, I don't know. But it's not just Judge Ho. So other judges are joining him. So the Free Beacon has reported that 12 judges, including both circuit judges and district judges, have announced that they will no longer hire clerks from Yale Law School. They bravely took this stand in favor of free speech, right, because it is free speech that is under attack at Yale.

So their stance in favor of free speech was done through an anonymous interview with the Free Beacon, which they announced that they would not be... The speech is always more free if no one knows it's yours. Right. I mean, some of the quotes by these unnamed judges are a lot. So let's quote a few of them. Okay. So the article said, another circuit court judge, a top feeder for Supreme Court clerkships, said he was torn on whether to participate in the boycott, but that the case for it had gotten stronger over the past year. I've hired a bunch of great Yale law clerks, the judge said, but at some point the institution becomes so worthless and degenerate that you wonder what conservative would want to be part of it. I mean, like, this is like Yale Law School, 127 Wall Street is the new red light district. I mean, also from the piece, right, this feeder judge apparently said that the school had made it a, quote, speech and thought seem to have a meaning with which I am not familiar. And yet.

After the Free Beacon article, it was also reported that Judge Branch of the 11th Circuit, another Trump appointee, also refused to hire from Yale Law School. And I have to say, you know, judges using their judicial office to engage in political boycotts against perceived ideological or political adversaries does wonders for preserving the appearance of an impartial, completely nonpartisan judiciary, right? Like, I am convinced. I am convinced. Wow. I mean, what's next, Leah? I mean, taking a photo with a Senate candidate and one time reproductive rights activist, Herschel Walker, or maybe even your spouse communicating with the staff of the disgruntled ex-president during an attempted coup. What is a nonpartisan, neutral arbiter of law and not vibes to do. You know, who is to say? I was personally happy to see that on the eve of this court term, Donald Trump shouted out none other than Ginny Thomas. So let's play that clip here, right? Just really sealing the deal on our nonpartisan judiciary. As we talk about and think of the rigged and stolen election of 2020, presidential election, rigged and stolen, I would like to thank a great woman named Ginny Thomas.

Do you know Ginny Thomas? She's a great woman. The wife of a great man, Justice Clarence Thomas, for her courage and strength in saying, according to the standard and routine leaks from the committee, you know, everything leaks out of those committees. They're like a leaking sieve. They're just like a leaking sieve. But she said that she still believes the 2020 election was stolen. She didn't say, oh, well, I'd like not to get involved. Of course, it was a wonderful election. It was a rigged and stolen election. She didn't wait and sit around and say, well, let me give you maybe a different answer that I've been saying for the last two years now.

She didn't wilt under pressure like so many others that are weak people and stupid people. Because once they wilt, they end up being a witness for a long time. She said what she thought. She said what she believed in. Too many Republicans are weak and they're afraid and they better get strong fast or you're not going to have a Republican party and you're not going to have a country anymore. That was so disturbing. And I think it warranted breaking from our ordinary rule that we don't ask Melody to ever put Donald Trump clips into the show. I think that one our listeners need to hear if they haven't. where federal judges list their openings to hire law clerks. And he said, this is to respond to the recent announcement by one circuit judge that he will no longer hire clerks from Yale. With due respect, that is regrettable. I regularly and recently have had Yale law clerks who consistently are extremely talented and perform spectacularly in upholding the rule of law,

et cetera, et cetera. And this is interesting sort of subtweet energy because Smith is on the Fifth Circuit along with Judge Ho. And Judge Ho, before he was Judge Ho, actually clerked for Smith. So not everyone is enthusiastic, even if they're ideological fellow travelers with this move by Judge Ho. It's giving real Anakin Obi-Wan Kenobi vibe, I think. Look at this Star Wars reference. Look at you. You know, and other judges have announced that they will not be participating in this boycott. So Judge Wilkinson on the Fourth Circuit said he would not be at a panel presentation. Judge McKee, a judge on the Third Circuit, described the boycott as like ugly and nasty and even called it horrendous. So let's do some actually fun and interesting court culture news. You know who's not canceling fashion? Who? Who's actually embracing it with both feet?

None other than our favorite SCOTUS spouse, Dr. Patrick Jackson, whose sartorial flair with his footwear continues. And in fact, it's so good that Ariane DeVogue, CNN Supreme Court reporter, tweeted about it. So she noted that at her investiture, Justice Jackson's husband was sporting none other than KBJ socks. And I have to say, I'm now looking at my husband like, do more. Find the Melissa Murray socks and wear them. I also appreciated

his boots. His boots were also featured in the picture. And they were also very fashion forward. They were black leather with a little monk strap and just slightly below the ankle so you could still see the KBJ socks. And to which I say, Dr. Jackson, yes, please. These are fantastic. Continue doing what you do. He's the ultimate fanboy. Jackson, yes, please. These are fantastic. Continue doing what you do. He's the ultimate fanboy. I love it so much. I know. He's adorable. American husbands are all going to have to step up their game. That's true. After Dr. Jackson. Dr. Jackson is in the house.

We also wanted to note that the Fifth Circuit issued its much-anticipated ruling on the Deferred Action for Childhood Arrivals program, the DACA program. For those of you who haven't been following this litigation, a district judge in Texas, because it's always a district judge in Texas, declared DACA unlawful but stayed the ruling with respect to current DACA recipients such that they could continue to have the benefits of the program, but there could not be new applications for DACA. The case went up to the Fifth Circuit, but during that process, the Biden administration announced that it would be reinforcing DACA through a process known as notice and comment rulemaking. So DACA originally had been announced through a guidance memo from the DHS secretary, and the Biden administration said instead we're going to do it through a formal rulemaking process. So what that means is the Fifth Circuit in this case kind of agreed with the district court but said because there's going to be a new rule here, we ask the district court to look at the first instance, whether this new rule that goes through notice and comment rulemaking is going to be invalid, you know, so the bottom line is DACA remains in place for current recipients, but it is in danger. You know, the Fifth Circuit's reasoning, to me, seems to imply that that court will say, maybe right after the midterms or after the election, that even though the program goes through notice and comment rulemaking, that won't be sufficient to solve the legal problems. It is long past time to pass the Clean Dream Act and give DACA recipients the security they deserve. But this is just kind of bubbling up and is, I think, a disaster waiting to happen.

So in addition to that development on the DACA front, Texas continued to make news. Texas executed John Ramirez. Ramirez, you'll remember, was the plaintiff in Ramirez v. Collier, the case that resulted in the court saying that the state had to allow a pastor to be able to audibly pray with Ramirez in the execution chamber and lay hands on Ramirez prior to his execution. In more fallout from the court's cases over the last few terms, we had the latest edition of originalist hotboxing, the follow-on from the Supreme Court's decision in Bruin decision. The judge put the order on hold to allow the state to go to the Court of Appeals as a result of the ruling. The state's restrictions on carrying weapons at medical facilities, summer camps are invalid, as well as the state's requirement that you look at an individual's social media profiles in order to determine whether to sell them a

firearm. And the analysis in this opinion is just otherworldly in what it reveals about Bruin. The judge was like, well, I'm looking for historical analogs. And because there wasn't social media back in the 1800s, this requirement is inconsistent with our nation's tradition of firearm regulations. Also because summer camp wasn't a thing. That wasn't a place at which the states restricted firearm possession. I mean, it's truly something. But at least all of us hardworking New Yorkers are going to be able to defend ourselves on the subway. So there is that.

And finally, we need to mention a truly epic amicus brief filed by The Onion last month. So the case in which the brief was filed involves an Ohio man who was arrested and prosecuted for creating a parody Facebook page making fun of his local police department. When he filed suit after he was acquitted by a jury, the lower courts found the police officer shielded by qualified immunity, and he has now filed a cert petition. So The Onion has a clear interest in First Amendment protections for parody, and it is a brief that does with the genre of the amicus brief things I've never quite seen done. It is brilliant, it is hilarious, and it's only like 20- amicus brief things I've never quite seen done. It is brilliant. It is hilarious. And it's only like 20-ish pages long.

So if you haven't read it, even if you've heard about it and think you know what it's about, actually sit down and read it. It's very much worth your time. Two big reminders. First, if listening to Crooked Shows in your podcast app is simply not enough, check out the Crooked Radio Takeover every weekend in October on SiriusXM Progress and on the SiriusXM app. It's a great new way to hear and discover all of the great voices and shows across the Crooked universe ahead of the midterms. Strict scrutiny episodes will air at 1.30 p.m. and 5.15 p.m. Eastern each weekend. And Crooked listeners can get up to four months free, so you can check it out at SiriusXM.com slash crooked.

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And just for a rare moment of earnestness, which we do sometimes have, your listening to and support of the show, most recently through these merch sales, is incredibly meaningful. And we appreciate it so much, you know, being women and in Melissa's case, a woman of color on the would be welcoming to women, including women of color, and promote the voices and perspectives of women, women of color, and people of color that get ignored in and around the court too often. And we are glad that we did and proud of what we have done, even though it has generated misogyny and misogynoir from all sides. It is wonderful when there are occasions to be reminded that there are people who enjoy what we are doing. So if you like the podcast and you'd like to stick it to the man, the men's, and the women who enable the patriarchy, rate and review Strict Scrutiny, our podcast, on your chosen podcast app and recommend it to a friend. And we will see you next week. Strict Scrutiny is a Croicket Media production hosted and executive produced by women and women of color, Leah Lippman, Melissa Murray, and Kate Shaw.

It is produced and edited by Melody Rowell, also a woman. Audio engineering by Kyle Seglin, music by Eddie Cooper, and production support from Michael Martinez, Sandy Gerard, and Ari Schwartz, and digital support from Amelia Montuth. Many women. Awesome.