Strict Scrutiny - Presto!

Episode Date: June 11, 2021

Kate, Melissa, and Leah get together to discuss Justice Kagan’s approach to statutory interpretation. We got two opinions this week, Sanchez v. Mayorkas, another unanimous immigration case, and the big ACCA (Armed Career Criminal Act, not Affordable Care Act) opinion we’ve been waiting for-- Borden v. US. They identify an important parallel between Justice Kagan and Taylor Swift and lay out the evidence that the Justices are reading their tweets (and everyone else’s too). Finally, they are joined by three former law clerks to Judge Katzmann (Professors Rachel Bayefsky, Bernie Meyler, and Lindsay Nash) to remember the late judge. Follow us on Instagram, Twitter, Threads, and Bluesky

Listeners, she literally just perked up like a puppy with freeze-dried turkey treats in front of him. Fresh turkey treats. 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 Leah Littman. And I'm Kate Shaw. And just a reminder, we're on a bit of an irregular schedule as we wait for the court to issue the remaining opinions from October term 2020. But even though our release schedule is irregular, we're going to stick to our regular diet of

breaking news, opinion recaps, and then some court culture. So today's episode will feature some SCOTUS news, and then we'll do a deep dive on Justice Kagan's approach to statutory interpretation, since she's the only justice that could get it together to release opinions this week. And then we'll have a court culture segment on how we all learned that the justices, they're listening to us, or at least they're reading many of our bad takes on Twitter. And then finally, we will pay tribute to the late Judge Robert A. Katzman, the former chief judge of the Second Circuit, who passed away on June 9th of 2021. So, breaking news.

There was a denial of certiorari in the case challenging the all-male draft. The case was National Coalition for Men versus Selective Service. Justice Sotomayor wrote a statement, which was joined by Justices Breyer and Kavanaugh, saying that the role of women has changed dramatically in the military since the court upheld the male-only draft in 1981's Rosker v. Goldberg. But because Congress is now considering the question of whether women should be eligible for the draft, the court isn't going to take up the issue at this time. As she put it, at least for now, the court's longstanding deference to Congress on matters of national defense and military affairs cautions against

granting review while Congress actively weighs this issue. Notably absent from the statement was Justice Kagan. So Leah, Kate, why do you think she was absent from this? Why didn't she join? You know, one possibility is she has very strong stare decisis is not for suckers energy. So perhaps she did not want to join an opinion suggesting that subsequent legal developments had undermined the weight of the court's previous precedent in Rostker. It's also possible maybe she didn't want to endorse the proposition that the court won't take up an issue at the same time that Congress is considering it. Maybe either one of those reasons, both of them in combination, were enough to lead her not to join.

Yeah, I think those both seem plausible. And also, you know, it was an interesting sort of writing. It was kind of like nice inter-branch communication, sort of saying, like, this is not a very legal analysis-heavy couple of pages. It sort of observed that the court had once considered this previously, talked about the fact that there were, you know, there was a hearing recently, there was a report that was done. So Congress seems actively to be considering the issue. And I think if you sort of squinted at it, it seemed also to be sort of sending a message to Congress, like kind of keep focused on this, because we might have to take the issue up if you don't, given how much has changed since the Supreme Court last considered the mail-only registration requirement. But maybe this is

something that should be considered by Congress. And I don't know, Justice Kagan, maybe she doesn't think that the court should be talking to Congress that way. I mean, I think it together, make your principle as intelligible as possible, or you're going to bring down the whole administrative state. So she definitely is in this inner branch dialogue. But maybe here... Like in opinions versus the orders list? Like, is that a distinction she might think is significant? I'm not sure. Let me just say about this case, I'm actually kind of glad the court denied cert here, in part because there was really a kind of strange bedfellows coalition of groups on here. So the National Coalition for Men has been very active in

litigation against what might be understood as anti-subordination, anti-discrimination laws, so laws that allow for certain things to happen to help women integrate into spaces that they were previously denied access to. But the National Coalition for Men has opposed those kinds of measures on the ground that they are gender discriminatory on their face because they violate bros' rights. Yes. And so again, I think the National Coalition for Men wants to expand the draft to include women in part because they have this sort of very rigid idea of formal equality. And I'm not opposed to women serving in the military or certainly being eligible for the draft. But I wonder where a decision on a case like this would take us in

terms of anti-discrimination law and the whole idea of an anti-subordination as opposed to an anti-classification norm. Yeah, so this may have been a dodge bullet, actually, potentially. So we got one grant this week in a case called FBI versus FISAGA. That's a case challenging government surveillance under FISA and the alleged unconstitutional targeting of Muslims in particular. The specific question to be decided in this case is whether Section 1806F of FISA, the Foreign Intelligence Surveillance Act, displaces the state secrets privilege and authorizes a district court to resolve in camera and ex parte the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence. So that'll be heard next term. The court also requested a response to an application for a stay that had been filed

by a coalition of realtor groups that were challenging the CDC Center for Disease Control's eviction moratorium, which prohibits landlords nationwide from evicting tenants who failed to pay rent during the pandemic. The current moratorium will expire on June 30th, although it's previously been extended several times. The CDC eviction moratorium has been challenged in a bunch of places, sometimes successfully, but this case comes to the court in a weird posture. So the district court for the District of Columbia found the eviction moratorium likely invalid, but then it chose to stay its own order, thereby leaving the moratorium in place pending appeal. And again, the moratorium expires June 30th. The D.C. Circuit declined to lift the district court stay,

but seemed to adopt slightly different reasoning, suggesting that it to lift the district court stay, but seemed to adopt slightly different reasoning, suggesting that it, unlike the district court, thought the moratorium was legally valid. So the Supreme Court requested a stay that is due this Thursday, the day we are recording. I guess in my view, I think it's hard to see them staying the district court stay or lifting the district court stay after the district court concluded the moratorium is likely unlawful, but then stayed its order. So the court would essentially just have to disagree with it about weighing the equities on whether to grant a stay, not on the underlying merits. On the other hand, you know, the most recent opinion is the D.C. Circuit stay opinion, which suggests maybe the order is valid. But again, that wasn't the reasoning

of the district court. So I guess I don't necessarily think they're going to act or do anything here, but it is something to watch. All right. In other news elsewhere in the federal judiciary landscape, federal judge Roger Benitez, who is from the Southern District of California in San Diego, struck down California's assault weapons ban. It's a ban on AR-15 weapons. And I just want to highlight some of the greatest hits from this 94-page opinion in the case, which is called Miller v. Bonta. So first of all, it should be noted that the judge declined to accept changes in the document before publishing it. So these changes appear in track changes in the 94-page document.

A little weird. Nightmare fodder. Oh, my God. Can you imagine as a law clerk? I know. But like who among us, who among us hasn't published a decision striking down a ban on assault rifles and just forgot to accept track changes? Let he who is without track changes cast the first stone. So just procedurally, that was notable. But also really interesting was the tone of this opinion, which at 94 pages felt a little bit more like a kind of screed weighing into what I think is fair to say is a kind of culture war on the issues of guns and gun controls and gun rights, more so than an actual serious opinion sort of parsing this question of whether the California legislature had gone too far and in doing so had intruded upon the rights, the Second Amendment rights of citizens. And so, you know, some highlights, the opinion says that

more people have died from the coronavirus vaccine than mass shootings. So here's a direct quote. More people have died from the COVID-19 vaccine than mass shootings in California. What? Huh? I don't even know what to say. Very relevant. Very, very relevant to the legal analysis. Also, very, I mean, I want a Daubert hearing for this.

Like, come on. Also, very, I mean, I want a Daubert hearing for this. Like, come on. Like, what? The next sentence also says, even if mass shooting by assault rifle is a real harm, dot, dot, dot. Like, just assuming for the sake of it. The opinion also goes on to compare assault rifles

to Swiss Army knives. I'm just going to say, assault rifles to Swiss Army knives. I'm just going to say I have a Swiss Army knife. I took it all over Europe back before when you could do things like that. A Swiss Army knife is for slicing cheese and possibly opening packages. Like an assault rifle is not for slicing cheese. And so anyway. It just shows you don't own guns, Melissa, right? Real, real gun owners know you slice cheese by just shooting an assault rifle

into your fridge. I know that the stereotype of anyone who's spent time in California is that you are a pinko communist, like you hate guns. My dad was an avid hunter. Like I grew up in a house with guns. So like, I get it. I know how to handle a gun. I know how you're supposed to deal with them and how to store them safely. But this is just ridiculous. Like, regardless of where you fall on the spectrum with regard to Second Amendment rights and gun control, I think you would find it ludicrous and overstated to say that, as this first sentence of the opinion reads, like the Swiss Army knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. That's where it feels like this kind of culture

war product, which is it's trying to normalize this weapon to say this is, you know, very commonly owned by, you know, the vast majority of owners or law-abiding people. This is something that is or should be familiar in every household in the same way a Swiss Army knife is. So it feels like a facially preposterous opening, but it is suggesting a state of the world that is actually quite substantively relevant to the analysis that follows, right? Because the court then goes on to use these two tests, right? The first test, which is this so-called Heller test, basically just says, is the weapon commonly owned by law abiding citizens for lawful purposes? And basically then says that the answer to that question is yes,

the prohibition is unconstitutional. So he said, look, I just told you, this is basically a Swiss army knife. Lots of people own them. And so under the Heller test, this law is clearly unconstitutional. So to be clear here, the court first uses the Heller test, again, for the purpose of establishing that the AR-15 is a normal and normalized kind of weapon that individuals have in their home for purposes of home defense. And then he goes forward to use a second test, this two-step test that first asks whether the regulation burdens conduct protected by the Second Amendment. And then second, using a means and ends fit, which is basically, I guess, like intermediate scrutiny, which is to say that if the conduct to be regulated is near the periphery of the Second Amendment right, then intermediate scrutiny is permissible.

However, if the conduct is deemed more core to the Second Amendment right, then you have to use strict scrutiny. And he doesn't really say whether this is closer to the periphery or closer to the core. All he says is that this would fail under intermediate scrutiny. So I'm not even really sure where this falls on that spectrum of core versus periphery, but it doesn't pass intermediate scrutiny, according to Judge Benitez, and the analysis stops there. So we'll see what the Ninth Circuit does with this case. If the Ninth Circuit upholds this district court opinion, then we, you know, we'll definitely have a circuit split that the Supreme Court, I think, will very likely take up.

So we'll keep a close eye on it. The president issued a pretty notable statement after the Department of Justice filed a brief in a case involving Puerto Rico's exclusion from certain social security benefits. So the president's statement basically said, today, DOJ will file a brief in a case involving Puerto Rico's exclusion from certain social security benefits. So the president's statement basically said, today, DOJ will file a brief in the Supreme Court in the case United States versus Vallejo Madero, which addresses whether a provision in the Social Security Act that declines to provide Puerto Rico residents with supplemental security income violates the Constitution's equal protection principle. The statement explains that the provision is inconsistent with the Biden administration's policies and values,

but basically points to DOJ's longstanding practice of defending the constitutionality of federal statutes, regardless of policy preferences, says the practice is critical to DOJ's mission of preserving the rule of law, and says, look, consistent with that general principle, the department will defend the constitutionality of the statute in this case. But look, as a policy matter, I believe Puerto Rico residents should be able to receive SSI benefits just like all their fellow Americans. And we're going to work with Congress to make that happen legislatively. So this drew a lot of intense reactions, I think, on all sides. I will say as an alum of the White House, not the Department of Justice, I think every administration wrestles with these questions where there are statutes that contravene the policy commitments of the White House, not the Department of Justice. I think every administration wrestles with these questions where there are statutes that contravene the policy commitments of the administration,

but where the longstanding norms in DOJ that statutes be defended seem to militate in favor of defense. There is no kind of easy answer to how that tension gets resolved. So I was in the Obama administration when the decision was made to stop defending DOMA. That was a very big deal, extremely carefully considered, and I think, you know, correctly made, but sort of made in the context of a rigorous process. It says it should be rare that the Department of Justice declines to defend statutes, or we are worried. We were an administration with an aggressive legislative agenda and concerned about what a future administration that didn't agree as a policy matter with statutes like the Affordable Care Act might do in the face of challenges to those statutes. So I think it's actually a hard set of questions.

I think what the Biden administration did here was defensible. I think that the statement should probably have been less categorical. It sort of seemed to suggest that defense was, you know, like an imperative. And that's not true as a historical matter. And I don't think it should be true as a normative matter. So I think that it could more carefully have said, it should be very rare, my administration is going to take seriously, and we, you know, have not determined that this is one of those rare instances in which we're going to decline to defend the constitutionality of a statute. So I think that was a missed opportunity to do a

little public education about it. But I sort of understood where sort of everyone involved was coming from in a way I think that a lot of people, a lot of others didn't. I don't know if you guys were less receptive to the Biden administration's arguments in this matter. I think there's probably more to say about the administration's take on maintaining policies from a prior administration and other venues that maybe Leah would like to weigh in on. Well, so I might not be able to weigh in quite as much as I would like to on the issue you are alluding to, which is, you know, there was another notable divide between the White House and the Department of Justice in a second case that involving E. Jean Carroll, you know, the author

who had sued former President Donald Trump for defamation after he said, you know, among other things, you know, that she was not his type when, you know, she accused him of raping her. Under the Trump administration, the DOJ had filed a brief at the last minute arguing that the president's statements about E. Jean fell within the scope of his official duties and that therefore the United States should be substituted in as a defendant for Donald Trump, again, because the statements were made in the course of his official duties and because the Federal Tort Claims Act does not include a waiver of sovereign immunity for intentional torts like defamation that would result in eGene's defamation lawsuit being dismissed. So we were waiting to get DOJ's brief under the Biden administration to see what they were going

to do. The brief came in and they are sticking with the position of the Trump DOJ saying that, yes, the statements by Donald Trump were made within the course of his official duties and he, the United States should be substituted in as a defendant for him. But then after the brief was filed, the Biden White House appeared to try to distance itself from DOJ's stance, saying it, quote, was not consulted by DOJ on the decision to file this brief or its contents and, quote, Biden and his team have utterly different standards. I guess that makes it like a little better. But like, this is not an instance of, you know, an obligation of defending a federal statute that is under attack, nor is it an instance where let's say there is a Supreme Court precedent on the books, right, or a court of appeal precedent on the books that is like exactly on all fours where, you know, DOJ needs to maintain some consistency in litigating positions. I think rather it is because these are executive branch lawyers whose like inclination is read these statutes aggressively to give themselves a

litigation advantage and like not anything beyond that, quote, institutionalist perspective. Yeah, I mean, I agree that these two are definitely distinct, you know, defending a statute on the books versus seeking to intervene in a case like this in which the conduct is so egregious. I mean, I imagine like a Vanita Gupta giving a speech about, I don't know, like white supremacist terror and like somebody who thought they were somehow like defamed in the course of the speech, like seeking to sue her. And DOJ saying like, we can't make these decisions based on how, you know, or just like either how our substantive views about the person, the conduct, the content, yeah, like, or just like either how our substantive views about the person, the conduct, the content, any of it, like we just think that government officials need.

Now, I think there's all kinds of ways you can draw a distinction between that scenario and the Trump one, because the subject of the speech was conduct that was so personal and so predated his time in public office. That seems pretty distinct from the scenario that I am describing. And I think there's probably lots of other ways to slice it, but I can well see them saying that sometimes you need to just, it's like a First Amendment argument. It's somehow like the test of your commitment to the principles of the First Amendment really comes when the speech is egregious as opposed to when you agree with it. You can see these DOJ lawyers saying like, we just kind of as a principled matter need to be able to intervene in cases like this and substitute the United States for private individuals. Although I think that there are clear distinctions

between this scenario and the Puerto Rico filing. And I want to say like, I don't mean to say that they're the same. I'm just sort of suggesting that, you know, there seems to be a kind of, you know, let's just sort of hew to a kind of principled stance on a lot of things. I am sure the Biden DOJ is concerned about correcting and perhaps overcorrecting from the problem of politicization of the department under Trump, right? And so maybe DOJ is simply not consulting the White House about these really important high profile filings, even to give it a heads up. And again, how those consultations happen is, you know, kind of fraught and high stakes, but typically there is some notice given. It sounds like there was no notice

given, which makes me think there are maybe new firewalls being erected between DOJ and the White House, which I mean, I understand the impulse to do, but I also worry about kind of hobbling the president and his ability to sort of have his views known in important matters like this because of the excesses of the Trump Justice Department, right? This is something that I worried about prior to January 20th and I continue to worry about now. The hits just keep coming. We should also note, for full disclosure, Leah, you are working. Yes. Sorry, that's what I meant when I might not be able to chime in with like as much color commentary as I would like. Yes, I am one of the lawyers for E. Jean Carroll. All right. Well, that's a lot of breaking news. So we should turn to the meat of

the week, which is the opinions that the court has released. There weren't a lot of them, to be clear, but the ones that came down were certainly interesting and significant. So let's start with Sanchez versus Mayorkas. And this was the case that we previewed earlier in our episode with the Appellate Project and ACLU lawyer Carmen Higuina Gonzalez. The case is about whether TPS, temporary protected status recipients, are eligible for LPR, lawful permanent residence status, or green cards. As we explained on our earlier show, TPS is a kind of temporary immigration relief where the government basically says, we're not going to deport people from this country to that country

because of dangerous or unsafe conditions like those arising from natural disasters or armed conflicts. LPR is a permanent immigration status, and LPR status is available only to those people who have been, quote, inspected and admitted, unquote, into the United States or entered, quote, unquote, pursuant to a lawful admission. So to be clear, not all TPS recipients have entered the country lawfully. In fact, many did not. But many of these individuals can satisfy the other conditions for receiving LPR status. So here the Supreme Court, in a unanimous opinion by Justice Kagan, holds that TPS recipients have non-immigrant status but are not admitted as required under 1255 and are therefore not eligible for LPR status unless they were lawfully admitted. Right, so put differently, their TPS

status doesn't mean they are admitted. If they have TPS status and they were lawfully admitted, they may still qualify for LPR status, but the TPS status itself does not mean that they have been admitted for LPR purposes. Mr. Sanchez in this case was not lawfully admitted, so he is ineligible for LPR status. The court here says that immigration status and admission are two separate concepts in immigration law, and the court also notes that pending legislation, H.R. 6, would deem TPS recipients to be lawfully admitted. So this is another unanimous immigration opinion. It's actually the third successive unanimous opinion to read immigration statutes to deny relief to immigrant plaintiffs. So that follows the unanimous Gorsuch opinion in Garland v. Mingde, reversing a Ninth

Circuit rule that benefited asylum applicants, and the unanimous Sotomayor opinion in Palomar, Santiago, in which the court held that the non-citizen petitioner could not collaterally attack his removal order because he did not show that he had exhausted administrative remedies and been denied the opportunity for a judicial review. We should note that Nes Chavez bucks this trend. So that was a case in which the immigrant plaintiff did prevail. But, you know, it's interesting that we have these three cases unanimous. Is there a trend as to immigration cases in particular or statutory cases more broadly? Is it just too soon to know in terms of where we stand in the term? I guess like two things come to mind. You know, first is that these immigration statutes are

actually quite harsh, restrictive, and draconian and anti-immigrant. And so, you know, that's part of what is generating these rulings is they're interpreting the statutes which are designed to be and are quite anti-immigrant. Second is it calls to mind this kind of famous letter that came out in Supreme Court papers where one justice said, you know, actually, I disagree with your opinion, but because it is June, I join. And I wonder if, you know, there's like part of that going on, you know, end of term that's under pandemic conditions. This case, at least, was argued in the end of the April sitting. So, you know, I think probably some combination of a lot of factors, but those were two that came to mind. I mean, again, I think Leah is right on with this one. I mean, I don't know if it's necessarily an

immigration trend or just a statutory interpretation trend with a statute that may actually just sort of trend this way because of its substantive content. Okay. I feel like we've made Leah wait long enough. We should talk about Borden. Okay. ACA, I burn for you. Yes. So we finally got the ACA opinion. We've all been waiting for. Listeners, she literally just perked up like a puppy with freeze-dried turkey treats in front of him. Fresh turkey treats. I've never seen you. Fresh turkey treats. So excited. You are smizing. You were slightly deflated talking about the immigration cases, but now you are perky and bushy-tailed. versus United States, the very important Armed Career Criminal Act case that I have been watching

like a hawk and waiting for. So ACCA is the statute that requires higher sentences for certain persons convicted of possessing firearms after a felony conviction. The usual penalty for that crime is up to 10 years. ACCA imposes a mandatory minimum of 15 years for persons with three or more convictions for violent felonies. And it defines violent felonies as a list of enumerated offenses. And those offenses that felonies as a list of enumerated offenses. And those offenses that have as an element the use of force against another person. That clause is known as the elements clause, and it was the one at issue in this opinion. And the specific question that the court addressed is whether a conviction for a crime that has a mens rea, a mental state of recklessness, can qualify as a violent felony because it has as an element

the use of force against another person. Can I just ask you to clarify something for the untutored ACA voyeur here? Is the whole idea of recklessness here is that these felonies that then trigger ACA are things that you would do intentionally, like the sort of harm against another person, but the recklessness mental state suggests that maybe you did not intend for the harm to happen to the other person? Yeah, like that was the gist of the defendant's argument, that ACCA is supposed to impose predicates for violent felonies, which mean like intentional or purposeful or knowing, but crimes committed with just like a reckless, you know, use of force or risk, right, don't qualify. So in a 5-4 opinion,

the court agreed with that argument and said, no, convictions for crimes that require only a mens rea of recklessness categorically do not qualify as having an element of the use of force, and therefore they cannot supply the predicate for the ACCA enhancement. So here's where things start to get awesome. It's an ACCA case, the defendant wins, and Justice Kagan wrote the opinion. Technically, the opinion is 414. I'll break that down and explain what it means. But Justice Kagan wrote the plurality of four. And again, the plurality says reckless crimes aren't ACCA predicates. Justice Thomas writes for himself, he's the one that reckless crimes aren't ACCA predicates, but for slightly different reasoning

that, you know, we'll talk about in a second. And Justice Kavanaugh writes the dissent that Justice Kagan just mocks mercilessly, again, adding to all of my vibes. So this is truly my good place. Defendant wins. Justice Kagan writes. Justice Kagan goes straight to Karras all over Justice Kavanaugh. Like totally worth the court adding an extra opinion day just for this case. And me sitting in front of my computer, just waiting, refreshing like this was everything. This this is everything I wanted. I just want to note that while I am getting increasingly excited,

Melissa and Kate are making these faces looking at me like, oh, my gosh. No, we're also in the chat. chat. Should one of us call somebody? Should we send help? We are your backup here. We have nothing that could possibly add to your excitement. I haven't seen Leah this excited since January 7th. I really haven't. I mean, she's just been sort of listless since January 7th. And this is the perkiest I've seen you in months. It's great to have you back, Leah. I'm glad Justice Kagan could be the one to do it. Wait, can I say something quickly about you said that Folder Karis like on the Kavanaugh dissent, which I think we will get to, but I realized that I need to qualify something

I said last week about the Van Buren opinion. I said that Barrett, like made kind of a tactical error in elevating the dissent because it sort of weakened her, right? Like she gave it all this airtime. That's not an absolute rule, right? There are ways when you're in the majority to spend a lot of time talking about the dissent and still emerge in the power position. And Kagan absolutely demonstrates that with his opinion. But I feel like Leah, I'm getting ahead of us. Okay, so what's up with the Kagan plurality? It is joined by Gorsuch, Breyer, and Sotomayor. It has some big textualist energy, albeit without the insane, I burned for you textualism references and without some of the general insanity of the methodology. So for example, she notes that dictionaries offer definitions of against that are consistent with both parties' views. How sane.

And in light of that, she places a lot of emphasis on the surrounding words, the fact that the language uses against another. And she also points to the court's prior writings in Leo Cal versus Ashcroft, as well as other cases, and also invokes both context and purpose. While taking a sideswipe at Sam Alito, noting in a quotation, quote, in a case much like this one, then Judge Alito reiterated the point. He wrote that the quintessential violent crimes involve the intentional use of force.

Receipts. Receipts. I also liked a couple of turns toward common sense and consequences, right? She basically is saying let's think about the difference just in kind of tangible terms between the kinds of crimes that just require recklessness and the kinds that require knowing or intentional conduct. So she says take some examples that don't involve driving because there's lots of reckless driving offenses. So a shoplifter jumps off a mall's second floor balcony while fleeing security only to land on a customer. An experienced skier heads straight down a deep mogul-filled slope, back on his skis, arms out to his sides off balance, and careens into someone else on the hill. A father takes his two-year-old go-karting without safety equipment and injures her as he takes a sharp turn. So these are all cases in which an individual was convicted for a crime which contained a mens rea requirement of recklessness. And she says, are these really ACCA predicates? And it just makes the stakes tangible. She says, no, they really aren't. Here's my question. And this is, I think, good going into our discussion of the Kavanaugh

dissent. I want to come back to your point, Kate, about whether or not you make too much of the dissent and actually addressing it head on. Would it have been more effective? It would have been less entertaining, certainly. But would it have been more effective if she just sort of ignored this in a kind of Mariah Carey, like, I don't know him, like, this is not worth my time? No. No, you're saying no. I'm saying no, not here. Emphatic no. Like, she torched this and laid waste to that descent.

So was Justice Barrett's problem that she did not go hard enough? Was that the problem? She just didn't have great arguments, I think. So if all you're going to do is spend a lot of time elevating arguments that are, you know, I think that Barrett had the better textual argument, but it was not, you know, so clear. I'm not sure. Like, I'm actually, as I think about it, like, I just maybe that maybe Barrett just needs to, like, hone these skills. Or maybe this is, like, a Kagan-only special. But they're doing basically the same thing, which is, like, responding at length to the descent. And it falls really flat in Van Buren.

And it is just so delicious here. Well, I mean, it does feel like a rap battle. I mean, I think we should send her, like, an enormous gold chain to wear in lieu of a dissent caller. Big pimpin' Elena Kira style. So here are some examples of what I think, you know, we're saying when we say it was extremely effective. You know, she basically starts out the section coming for his dissent, mocking his arguments this way. The dissent offers up two alternative, really mutually inconsistent counter arguments. In the first, the dissent is all on its own. In the second, the dissent goes more conventional, essentially repeating what the

government says, though with a distinctively question-begging quality. Like, it's just savage descriptors, right? Like the asides, the em dashes, like, I would be humiliated. I would be humiliated if someone wrote that about me. Anyways, then she talks about those two arguments. On the first, she says, that is no way to do statutory construction. No wonder the dissent is the first to make the argument. It fails at every turn. The first argument was that the statute used a quote term of art, but the term of art wasn't actually in the statute the term of art the dissent was pointing to was offenses like it was just an insane argument that again caitlin just laid waste to and then on the second argument she says and so the dissent must proceed to its ordinary meaning claim reprising

parenthetical if at higher volume the government's flawed arguments like that is a sick burn right basically calling the dissent like a shrieking you know shrill hysterical angry man um um right exactly exactly and then you know again describing the argument she says you know but once again the dissent is putting the rabbit in the hat but congress did not say recklessly. We must construe the elements clause as it is without first inserting the word that will presto produce the dissent's reading. Also, she put presto in parentheses. I mean, it's again like depicting the dissent as just like making stuff up and trying to pull all these like fast ones and tricks. And she's so good at characterizing, you know, another side's argument accurately, while also extremely viciously, that I just think

this really works. So just after reading this, the following thought crossed my mind, you know, we only got two opinions this week, and we got them on two days, you know, last week, the court announced it was adding an opinion day on Thursday in addition to Monday. Do you think that after reading the back and forth between the majority and the dissent, the chief justice just put this day on the calendar, walked over to Elena Kagan's office, and was like, Elena, you can stop. He's already dead. And was just like, you need to put this one out the door. Can you imagine her hitting send on the fax machine and then turning to her clerks and saying, y'all want to see a dead body? Exactly. Exactly.

Exactly. While we're asking the burning questions about this opinion, following comes to mind. Is Justice Kagan leaving Taylor Swift-like Easter eggs for our listeners? In the opinion, she said, you know, according to Borden, that word against means in opposition to. Examples are easy to muster. The chess master played the queen's gambit against her opponent. I mean, we definitely did refer to Justice Kagan as Beth Harmon on a recent episode. And I just love the idea that Justice Kagan listened to it and decided to add that reference, knowing that she, in fact, is the chess master playing the queen's gambit. I mean, we can dream. Yeah.

Justice Kagan, if you're listening, please come on Strict Scrutiny and discuss Aka with me. Please, please, please, please please please please we will get Regé-Jean to read these lines from your opinion right oh my yeah it will be amazing we'll get Taylor Swift to put them to music to music anything you want girl anything you want reading this opinion in my cardigan in your car again Leah you like do you want to go on and talk about Justice Thomas's opinion? I know you have thoughts. Okay, try to do it quickly. Take a breath. Take a breath. Take a breath. It's hard. Justice Thomas wrote separately because he thinks reckless crimes

aren't acca predicates because they don't involve the use of force, not because of the additional phrase against the person of another. And he invokes his dissent in the court's prior case, Voisin, which interpreted a separate statute defining a misdemeanor crime of domestic violence and specifically the phrase use of force. That statute, the court had said in Voisin, did cover reckless conduct. And Justice Kagan actually wrote the majority opinion in that case. In what might be the greatest footnote in this case, Justice Kagan said, in one paragraph of its brief, the government tries to erase this textual difference by invoking a sentence in Wazin. You know, we think that a stretch, that locution shows only that sometimes we do not paraphrase complex statutory language as well as we might.

Parentheses, mea culpa. My bad. My bad. I loved it. Like, it's so smooth. But she also explains in the preceding sentences, she's like, it's, I just, there was a long unwieldy statute. I was just compressing the kind of basic essence in a sentence, like slowed your roll, like putting this much weight, like on that one sentence. But the mea culpa in parens was just like, oh, amazing.

There's just a lot of like big majority energy in this. Like sit down, son. Like that's not what I meant, son. Like, like, settle down. It's big plurality technically, but you're right. The energy is majority. We should just elevate it now to a majority, right? I mean, come on. But back to the Thomas concurrence. So remember that Justice Thomas has previously said that demonstrably erroneous opinions are not entitled to stare decisis effect. In this case, Justice Thomas writes that he thinks the court's prior opinion in Johnson versus United States is wrong. Johnson is the case that struck down another ACA clause, the residual clause, as unconstitutionally vague.

And Thomas says, look, I don't think that clause was vague. And I think this guy's conviction would qualify as a violent felony under the residual clause, but not the elements clause that still remains. So what am I to do? He says he would overrule Johnson. So is he abiding by a wrongly decided case because of reliance interests or consequences? It kind of seems like it. You know, it's like it's an oddly pragmatic and weirdly tortured couple of pages. And also for the first time, Liam, your description just now made me really retroactively sad that we didn't have a podcast when Johnson came down,

because that would have been epic. Maybe we need to turn back time and make that happen. Okay, Hermione, get your time turner. I'm happy to do several emergency episodes about that. All right. So we should note that 414 opinions sometimes create very difficult questions about which opinion controls and what the governing law is. And as an example, we need look no further than last term with June Medical, the Louisiana abortion case in which you had a Justice Breyer plurality, but the chief concurring and under the rule of marks, a number of different circuit courts decided to follow the chief's opinion. But there's no doubt about the legal rule that emerges from this case. So Justice Kagan made

the point clear when she responded in a footnote to Justice Kavanaugh as follows. The dissent also goes through a complicated counting exercise about how different justices have divided in this and two other cases, apparently to show how unfair it is that the dissent's view has not prevailed here. But there is nothing particularly unusual about today's lineup. Four justices think that the use phrase, as modified by the against phrase in Acca's Elements Clause, excludes reckless conduct. One justice thinks, consistent with his previously stated view, that the use phrase alone accomplishes that result, Justice Thomas. And that makes five to answer the question presented.

Does the elements clause exclude reckless conduct? Answer, yes, it does. Boom. Lawyered. Lawyered. All right. So there are 21 outstanding argued cases. There are three weeks left, which means we are going to have some chock full of nuts episodes going forward. So stay tuned for those. So really quick, let's do some court culture before we shift into our final segment. So Kate, are the justices reading our tweets? Yes, but not necessarily exclusively through their burner accounts. I suspect that like all nine of them or like a solid four or five are actually lurking on Twitter.

But even if I'm wrong, or even for those who aren't, it turns out that Kathy Arberg, who has been the court's public information officer for about 30 years, is retiring this summer and gave an exit interview to Marcia Coyle, who gave her a delightful tidbit, which was that over the course of the past year, the public information office has clipped approximately 10,000 news articles related to the court and the justices, and that of that 10,000, approximately half of them have been tweets. So Kathy's office is excerpting tweets. We don't know anything about the curatorial paradigms they are using, but they are somehow sharing. And we can just sort of hope against hope that some of Leah's Voting Rights Act tweets are among them. But so the justices are keeping up with Twitter in some fashion. So I don't know. I feel like that makes me think differently about tweeting about the court and knowing they're actually reading us.

I wonder if they have a Finsta. which nicknames does Justice Alito know I gave him and does Neil Gorsuch think we want Regé-Jean Page to actually play him on this show or does he understand it's a joke um anyways these are just some questions wait was it a joke because I thought we were serious well it was like an ironic reading was it ironic I just thought we wanted Regé-Jean no we definitely sincerely want Regé-Jean Page on the show. I think just the question of him reading Neil Gorsuch's M's, is it favorable to Gorsuch or is it less favorable? It's a huge glow up. It's the actual resemblance between the two that is leading to our casting interest. And Leah is nervous about that impression.

Yeah, sorry. Being potentially left with justice. I'm sure that he thinks it's a compliment if he knows about it at all, which we're going to go with yes. I mean, I think it's fine if that's what he thinks. It is a compliment. He is a very well-trained actor with wide range that anyone should be pleased to have reading his writing. That was a fun bit of court culture, but I think now we should segue into our next bit of court culture, which is decidedly, I think, a little sadder and more difficult. And that, of course, is the breaking news that we got on June 9th that Second Circuit former Chief Judge Robert A. Katzman had passed away. Earlier that day, June 9th, we actually had words from Senator Chuck

Schumer, who offered well wishes to Judge Katzman on the Senate floor and noting that the judge was ailing. We're joined today by several of Judge Katzman's former law clerks who are here to share some of their memories and remembrances of their judge. Bernie Myler is here, and she is the Carl and Sheila Spaeth Professor of Law and Associate Dean for Research and Intellectual Life at Stanford Law School. Rachel Bajewski is an incoming Assistant Professor of Law at the University of Virginia and part of that school's incredible hiring run this year, which we have previously discussed on this podcast. And finally, Lindsay Nash is a clinical assistant professor of law and co-director of the Catherine O. Greenberg Immigration Justice Clinic at Cardozo Law. And it's especially fantastic that Lindsay is here because her work on immigration and immigrants' rights is related to some of the work that Judge Katzman found most meaningful in his career.

We should note that Judge Katzman founded the Immigrant Justice Corps, which is a fellowship program that helps to meet the needs for legal assistance for immigrants. And he also organized, as chief judge, a study group on immigrant representation, which then led to the first government-funded program for providing legal counsel for detained noncitizens. Judge Katzman had a very long and varied career in the law. In addition to being a judge, he was also a professor at Georgetown Law School, also affiliated with the Brookings Institute, and he also worked as counsel for Senator Daniel Patrick Moynihan of New York and was specifically denominated by the senator to shepherd then-judge Ruth Bader Ginsburg through her confirmation hearings when she was nominated

to the Supreme Court. He was an incredible scholar, authoring the book Judging Statutes, as well as the courts and Congress about interbranch dialogue. And notably, in addition to a JD from Yale Law School, he was also a judge who was trained as a political scientist holding a PhD in political science. That really doesn't capture the weight of the man. So Bernie, Lindsay, Rachel, we'd love to hear about your judge and what you're remembering on this sad day. So Bernie, I'll start with you. Thanks so much for celebrating Judge Katzman's life in this way. It's just a terrible loss that he has passed away so early. As those of us who had really any encounter with him knew,

he was both brilliant and also incredibly kind and humble throughout his life. And in a way, I think of him as someone who managed to, more than anyone else I know, institutionalize kindness. And I'll just tell a sort of story about how I see that having unfolded in his life. When we were clerking, and I actually clerked the same here as Melissa did on the Second Circuit, during that clerkship, we encountered a number of very poorly drafted briefs for immigrants and in asylum cases and other kinds of cases. And in one particular instance, there was a set of briefs that had been almost kind of copy pasted by the same lawyer for different clients. And that person was ultimately censured. But I remember talking with Judge Katzman about how horrified he was at the lack of adequate representation for people who were coming from other places,

who maybe had language barriers that were preventing them from hiring better counsel. And, you know, I see how over the years he worked to establish, help establish the Immigrant Justice Corps, help establish different procedures for immigration cases at the Second Circuit. He worked tirelessly to sort of translate that impulse of initial fellow feeling for the people he saw before him into an institutional context. And similarly, when I was clerking for him at some point, we had brunch with my mom. He had never met her before. And suddenly she launched into a critique of the Second Circuit because she had helped a pro se petitioner with a case and thought that that woman had been unfairly treated. And I was about to hide under the table.

But Judge Katzman was so kind in his response and sort of really took on board the critique of how the judiciary treated pro se plaintiffs and pro se litigants. And then over the years would kind of update me, especially as he was chief judge on, you know, his progress in securing better treatment for pro se litigants. So I just, I think of that institutional kindness as kind of his hallmark. And there are lots of other stories I could tell, but those will be my initial ones. Rachel, do you have any recollections you'd like to share with us about your judge? Yes, certainly. And thank you so much as well for doing this. So I clerked for Judge Katzman when he was the chief judge of the Second Circuit. And as the chief judge, we really got to see how

he took his responsibilities in that role extremely seriously. He really loved the Second Circuit, its history, the former judges, its traditions, for example, the practice of holding oral argument on most cases. And he immersed himself deeply in making sure that everything ran smoothly and efficiently. He had come from the world of think tanks and academia at Brookings and at Georgetown. And sometimes people with that background, there's the perception that their head is in the clouds or they're somewhat impractical. But Judge Katzman was exactly the opposite. He was the quintessential manager with a prodigious attention to detail. And I think for him, the smooth administration of justice was not just a pragmatic issue.

It was intimately tied up with the important substantive goal of ensuring that the courts were responsive to citizens' concerns. So it was really wonderful just being able to see that commitment behind the scenes. And Lindsay, I should say, I had a conversation with Judge Katzman, I guess in the summer of 2019 at a breakfast, and we were talking about immigration law. And he mentioned twice that he had this wonderful former clerk who is doing absolutely amazing work leading an immigration clinic at Cardozo. So he was incredibly proud of your work. And I got the sense that maybe some of what you're doing now was informed by your time in his chambers. Yeah, absolutely. And first of all, that sounds exactly like the judge, like every time you want to talk to the judge about something he's doing, he

deflects and starts talking about how great someone else is and like heaping praise on other people. So that's exactly who he is. But yeah, I mean, I was actually lucky enough to start working with the judge even before I started clerking for him. I knew I would be clerking for him, but clerkships were kind of backed up at that time. And so I had three years until I would actually start clerking for him. But I knew that I wanted to work in the immigrants rights arena, and I knew that the judge cared about these issues. And so I was really lucky to be able to work with him in the context of the study group on immigrant representation, which is a group that he launched comprised of lawyers and advocates from all different sectors in New York

that worked together to think about how we can address some of the problems that he saw. And it was a very Judge Katzman-like approach. He wanted to study the problems and study the solutions. And as a just graduated lawyer, I was kind of like, this seems like a very slow approach. And also, it seems like so intractable. I don't know how we're going to make this change because at the time there were very, very few jobs for immigration lawyers and new graduates. But in his Judge Kasdan way,

he foresaw that a study was exactly what we needed and was what would be the launch pad to some of these amazing programs that you've heard about. And so I was able to work with him on launching some of those programs. And that really, I think, changed the course of my career. It made me see how important it is to train new lawyers to do this kind of work and to think about this kind of work in a holistic way, to think about the problems and how we can solve them and the people at the heart of these cases.

And that was very much something that moved Judge Katzmann. And honestly, in a way that there was no reason for it to. He didn't work in immigration courts. He didn't see the inside of immigration detention centers. And so I think it really says something about who he was that he saw that in appellate briefs and did all the work that he did to push back on that. Can I ask anyone to comment a little bit on Judge Katzman and statutory interpretation? We're talking a lot this term about the court has a lot of big statutory cases, many of them sort of surprisingly unanimous. And I think that textualism is really kind of ascendant on the court or sort of in a pretty dominant position. And I think Judge

Katzman was one of the most effective critics of some of the precepts of textualism that we have had writing right on the bench and also in his scholarship, right? Melissa mentioned judging statutes. It's a terrific book that I would commend to all of our listeners. It's short. I like to teach from it, so I think it's a great teaching aid. But I also think it's just a wonderful overview of a kind of a pragmatic approach to statutory interpretation, right? I would call it purposivism, but it's not particularly interested in labels, right? It's interested in kind of doing the hard work to figure out sort of, you know, what a statute is trying to accomplish. And so that's, sorry, I'm editorializing a little bit, but I'm curious now, having read a lot of his scholarly work and opinions in statutory cases, what – the process if anybody wants to comment on it, sort of what you learned about interpreting statutes from the judge or sort of how he approached statutory cases when you were in his chambers.

And maybe just one hook for our listeners. It was ultimately Judge Katzmann's view about Title VII that the court affirmed in Bostock versus Clayton County. You know, Judge Kassman wrote the opinion in the Second Circuit and Altitude Express in which he held that Title VII prohibits discrimination on the basis of sexual orientation. So, you know, just to give our listeners some sense about how he's contributed both to the field as well as, you know, Supreme Court jurisprudence more generally. Yeah, I can start answering the question maybe. I think that for me, he really trained me and how to think broadly about statutory interpretation. I can remember dealing with one case that

involves statutory interpretation. And he, I hadn't taken a class on it in law school. But he told me, okay, well, you need to go to the law library, which he then devoted a lot of attention to also at the Second Circuit. And I take up the microphones and, you know, these are the committee reports that are most important for you to look at. And then you can look at, you know, floor debate, but, you know, it's really the committee reports that are crucial here. And we went through a lot of the sort of steps of how to think about researching the context of a statute and think about it in a broader way than simply by the language. And that was always really important in his assessment, I think, of

different statutes. Yes, I would also say that I think his pragmatic approach to the interpretation of statutes stemmed in part from his background exploring the relationship between courts and Congress. And I think it came from an interest in interbranch comedy and making sure that the judiciary respected the legislature's work product and so would look into how that legislative work product had actually been produced and interpret statutes in a way that was sensitive to that. It's funny you mentioned courts and Congress. When I was clerking for Justice Sotomayor when she was on the Second Circuit, I had

just finished reading that book. We had lunch with the Katzman Chambers pretty regularly because Judge Katzman and Judge Sotomayor were very, very good friends. Bernie, we used to joke that our chambers were sort of like cousins in a way, judicial cousins. But I asked him to sign my book. And he had a very wry sense of humor. So he signs it for me and then says, don't go selling this on eBay. And I was like, oh, I would never do that. And he was like, I know, you'd get nothing for it. But I was like, no, I actually want to keep this book. So he was like, incredibly humble, and kind of funny, but this really sort of deadpan, dry wit that, you know,

came out in all of these really lovely ways. So Lindsay, can you tell us, again, like, the work that he did in the immigration rights community, I think, doesn't get as much play as his work as a jurist. But he was incredibly committed to it, as well as to the cause of civics education. He really believed that we weren't doing a good job in teaching civics to the younger generation. And, you know, both the question of immigrants' rights and the representation of immigrant communities and the questions of civics seem incredibly urgent at this particular moment. So I wonder if you might say a little bit about what he taught you about both of these things. Absolutely. I mean, I think that at the heart of both is that it's his commitment to having justice be accessible and more fair. He talked about both as an administration of justice issue and as an access issue.

He loved the courts, and he wanted the courts to be accessible to people, and he knew that if the courts weren't accessible to people because of their income or because of their understanding of the English language or their inability to sort of access other points of entry, it wasn't going to be the court system that he believed it could be. And so I think that was driving his focus on both ends is sort of the through line between them. And I think that's something that he really instilled in his law clerks. I think there's a deep commitment to serving those goals. Although his clerks work in many different substantive areas, I think that's one of the commonalities that you see is that he instilled those

values in all of us. We should also note that at the Second Circuit, as Chief Judge, Judge Katzman initiated the Justice for All Courts in the Community, which is a civic education initiative of the federal courts of the Second Circuit, which basically provides civic education under the idea that broad access to the courts is actually necessary to foster a robust democracy and to make those norms of democracy available to all. So that is available. And you can see some of the work that's being done on that at the Second Circuit, if you go down to the Thurgood Marshall building in Foley Square or the Daniel Patrick Moynihan Building at 500 Pearl Street. So I saw a tweet, you know, me and the public information office at the court just monitoring

tweets by another former Katzman clerk, Andrew Brad, who's a professor at Berkeley, that said, hand friendly Katzman, you know, basically putting Judge Katzman together with, you know, the former Second Circuit judges who have made such substantial contributions to the law and the legacy referring to Judge Learned Hand and Judge Henry Friendly. And I guess for people, particularly law students who didn't lawyer in an age in which Judge Katzman was such a presence on the bench and on the legal profession, like, what are some things you hope to become, you know, part of his legacy in the, you know, legal community, just like, you know, those other judges, Judge Hand and Judge Friendly kind of came to be known, even after, you know, their

terms of service? Well, I can start and it may be something that's a little bit outside the Judge Friendly and Judge Hand legacy, but I really think that he's a civil rights hero. I think that he wasn't always framed exactly that way or seen that way during his life for obvious reasons. He's a judge, and there were some constraints of his position, but I think the changes that he's made and the real transformation he's made for immigrants who are in legal proceedings in the United States make him that kind of hero. And so I think that's a major aspects of his legacy is really encouraging that kind of communication between

the courts and Congress rather than an oppositional relationship among the branches. And I think that he's someone who had a deep institutional knowledge of the executive branch, Congress, and the courts. And I think that kind of depth of institutional awareness and also interest in playing out that connection among the branches is something that should remain. Yes, I think both of those points are very true. And I would add a point about his style of judging as well, which is that he was extremely concerned about collegiality on the court and being part of an appellate panel. In fact, I think there was a point, if I remember correctly, which I might not, in his

clerkship handbook that he gave out to incoming clerks saying that he did not give stylistic comments on the opinion drafts of his colleagues, which I take to be a way of, you know, not sort of needlessly irking colleagues about something that didn't necessarily need to be raised. And I think, you know, whenever we gave comments to other chambers, he would always say we want to focus on the most important ones. And I think for him, collegiality on the court was not merely a matter of trying to sort of get along. I think he understood that in the long run,

having a court in which judges respected one another and worked well together and complemented one another was in the ultimate interests of justice. So I think that is also an important part of his legacy. That's a terrific note to end on. So again, we are celebrating the life and work of Judge Robert Allen Katzman, who passed away on June 9th at the age of 68 after a long and distinguished career in academia, in Congress, as a lawyer for Senator Moynihan, and finally as a judge on the Second Circuit. We've been joined by three of his clerks, Bernie Myler of Stanford Law School, Rachel Bajewski, who will be joining the University of Virginia's Law School, and Lindsay Nash from Cardozo Law School. Thank you so much for joining us. And we send our warmest condolences and best wishes to Judge

Katzman's family, including his wife, Jennifer Callahan. So thanks, everyone, for listening to this episode. Thanks so much to Bernie, Lindsay, and Rachel for joining us to pay tribute to Judge Katzman. Thanks to our wonderful producer, Melody Rowell, for splicing together all of our audios. Thank you to Eddie Cooper for making our music. Thanks to all of you for listening. If you'd like to support the show, you can do so at glow.fm forward slash strict scrutiny

or by getting a glow up on our website by purchasing some merchandise. Thank you also to Justice Kagan for giving me life this week. Thank you.