Strict Scrutiny - Putting the Tea in Totenberg

Episode Date: January 24, 2022

Nina Totenberg joins the podcast to discuss her story that broke the Internet and sent the Court into a statement frenzy. Kate, Leah, and Melissa then break down some of the January arguments and what is happening with S.B. 8. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. 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 Kate Shaw. I'm Leah Littman.

And I'm Melissa Murray. And today we are coming at you live over Zoom, of course, because we are not Neil Gorsuch. And we are here with the student chapters of the American Constitution Society at these schools, Yale Law School, NYU, Berkeley, and Buffalo. So welcome to the show, everyone. We are also really excited to have our GLOW supporters in the audience, as well as some students from Texas and Michigan. So welcome, everyone. And do we have a treat in store for you today. Surprise! With us today is the incomparable, unparalleled

Supreme Court commentator of the moment, nay, every moment, Nina Totenberg. Welcome to the show, Nina. Thank you for having me, ladies. So even though she needs no introduction, we will offer a brief one. Nina Totenberg is, of course, NPR's award-winning Supreme Court correspondent. And this past week, she basically broke the internet, the broader media, spun the Supreme Court into a frenzy with her reporting on the dynamics of the Supreme Court, including regarding masking. And so we invited her to join us today to break down everything MassGate and anything else she wishes to talk about. Well, thank you for having me. Let's hope that people will actually read my story and know that it was about more than MassGate.

But I'll leave it at that and say that I've been spending more time deflecting inquiries from my colleagues, not my colleagues who cover the Supreme Court, but other colleagues in the press, you know, from BuzzFeed to Fox, and I don't have time for that. I'm a busy person these days. So can I just note that you did actually issue a rejoinder that was picked up by the Daily Beast, where you basically just said you didn't have time for people trying to fact check you. You're Nina Totenberg and your facts are checked and you have dinner cooking and you need to leave. And I have to say-

My husband cooked the dinner. I was sitting down to dinner. He made cocoa vans. Excuse me, folks. This is an essential fact you have to know. My husband, who is a fabulous surgeon and trauma surgeon, and who just had a shoulder replaced, managed to make coq au vin with one arm. And I was sitting down to eat it. And the guy from BuzzFeed called to ask me about something that our ombudsperson

wrote. Now, our ombudsperson doesn't report to the news department. I report to the news department. I know who my sources are. They know who my sources are. They edit everything like this very carefully. And sometimes with me saying, oh, all right, I'll do such and such. So I was going to eat dinner. I wasn't going to bother with this. This dinner was way more important. Nina, do you watch The Real Housewives of Atlanta? No. I'm shocked.

Thank you. Next time you guys give me shit for not watching that show, all the shows, I'm going to say Nina doesn't either. Sorry. Nina doesn't watch those. I'll tell you what I do watch that's really politically incorrect. I mean, really. This is wildly politically incorrect. I watch, really. This is wildly politically incorrect. I watch Blue Bloods and NCIS.

Oh, interesting. So I'm a law and order person. Well, I'm a law and order person too, but the old law and order, not the mob, not the SUV, as I call it, none of those. I like the original ones, the ones that had actual, you know, ripped from the headlines, regular different kinds, not just babies who were being abused, not just the godfather, but, you know, stuff you could really relate to.

I think you like if you're covering the court, I think you would really enjoy The Real Housewives of Atlanta, the energy you gave in that story where you were just like i don't have time for you to fact check my stories or this unbutts person was very much like sheree whitfield who who's gonna check me who gonna check me boo no one's gonna check nina totenberg and so no that's not true my editors check me they know they actually asked me who were my sources for this and that's not true. My editors checked me. They know. They actually asked me who were my sources for this. And that's what Ben Bradley did in Watergate. And so I always say, all right, you and only you. And if you have to talk to the vice president for news, fine, but nobody in between. No, when we meant like, no one's going to check Nina Tonenberg, we meant like the people

at the other outlets who were, you know, calling you while your husband made you a coq au vin, which not cool. Not cool, by the way. Like, yeah. Well, how did he know? Poor guy. He learned, though.

He did learn. We should run down the show. Yes. So as Nina suggested, her story contains much more than masking. We are going to cover the juicy court culture piece that Nina gave us. And in order to make sufficient time for that discussion, we're going to save some of the recaps of argued cases until next week.

And that's also because we will end with some developments on executive privilege and SB8. And it's also because most of the arguments were really dull as dishwater. Go ahead. I wasn't going to say, but thank you, Nina. I will let Nina Totenberg say that about sentencing and only Nina Totenberg say that about sentencing. She was not talking about Concepcion, the other cases. But I do have a bone to pick with you about your solo jaunt with Pavan the other day. We'll talk later. Okay.

So, listeners, on Tuesday morning, as the justices were getting ready to take the bench, Nina Totenberg, NPR SCOTUS Correspondents, and our guest today released an article. And when she did, it was a little bit like releasing the Kraken. Some big Sidney Powell, but better energy. And it was an article all about what was going on behind the curtain at the court. And, ooh, did Nina spill the tea? The title of the piece is Supreme Court Justices Aren't Scorpions. And that, of course, is a callback to the famous quote that the justices during FDR's administration were like scorpions in a bottle, constantly pricking each other. But she also noted they weren't happy campers either. So,

Nina, can you tell us what you reported on in that piece? Why aren't the justices happy campers? Well, the lead-in, which has gotten all of the attention, said that Justice Sotomayor, who I think you clerked for, has very serious diabetes. She's 67 years old. She has been wildly careful during the pandemic. And when the court came back to in person, she was the only justice who wore a mask because they were all vaccinated. She's vaccinated. They all got boosted. She got boosted. However, when Omicron hit and they all came on the bench, she wasn't there. And they all were masked up except for Justice Gorsuch. And what I reported was that understanding Sotomayor's predicament, position, whatever you want to call it, the chief justice had in some form, and I probably shouldn't have used the word asked, but asked, that's the easiest way to put it, his colleagues to mask up. Now, there are multiple ways to do that, obviously. You can

say to them individually or collectively, and I have no idea whether he did it either way, but that essentially she was concerned about this. Anyway, seven of them got it and one of them didn't. And that one happens to sit next to her. So she wasn't there. I also reported that as a result, she didn't go to the conference in person. In both cases, she participated. As they say at the court, telephonically, I have not understood yet why my colleagues call it that either. She participated by phone.

I'm not telephonically. Why do we say telephonically? That's not a that's a stupid word. You should make yourself the public editor of the Supreme Court and tell the chief to stop using the word telephonically because that's a dumb word. And just to say by phone. Well, I've told my I've told my colleagues that they the word telephonically because that's a dumb word and just to say by phone. Well, I've told my colleagues that they still say telephonically. It's like we are all in language space. Okay, so a lot going on in the piece.

Let's start with the masking. But as we said, much more to cover. So what you reported is kind of what we had speculated, which is Justice Gorsuch's refusal to wear a mask was contributing to Justice Sotomayor's inability to participate in person, on the bench, as well as in person at conference. This is his behavior literally forcing Justice Sotomayor out of the rooms where things happen because he refuses to take this minimal precaution. The Supreme Court then, having seen this story kind of blow up online and elsewhere and other people pick it up, they felt constrained. First, Justice Gorsuch and Sotomayor issued a statement, which I actually don't have in front of me. We've got it. So somebody read it. So this is Wednesday, right after about 24 hours of everyone spun up about this reporting. Well, Kate, Kate, we should also say not only did everyone on the internet get into this, like all of the regular

media outlets, Jorts the cat also weighed in to note that that's an asshole move, Neil. And I mean, this is a cat. The story jumped the species barrier. It reached celebrity gossip sites. I was getting alerts from like Celebitchy and TMZ and other things. Like they were reporting on what you had broke. So anyways. You people have better things to do than be on those sites all the time. No, we don't. No, we don't. No, we don't. I did not know who Jorts the cat was, but I have now tweeted about Jorts on this. Okay. The amazing thing is Melissa and Leah managed to do the better things and also keep up on all of this.

You read faster than I do. I mean, you don't really have to read. There are a lot of pictures in these websites. Anyway, so the statement by Justice Sotomayor and Justice Gorsuch says as follows. Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends. Who give each other COVID.

Well, we're going to start with this. It's what reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask was reference. I didn't say that. I don't believe she did ask him. And in fact, I think this probably is how this ends, ultimately, because it must be embarrassing to him. He's not unable to be embarrassed, I think. And ultimately, she'll ask him, because it's not fun to not be with your colleagues either. It's not really a good thing for any justice to be sort of isolated out in, I don't want to say right field or left field, just field. The center field. Center field. Center field. Any field. But can't he read the room? Everyone is coming out wearing a mask. Your one colleague,

who has a chronic health condition, is participating by phone. And you're unmasked as though it was 2019. Well, he may, you know, if you read his some of his defenders, some couple of whom are his former clerks, you would think that this is sort of his libertarian view, that he doesn't want to wear one, or possibly that because it coincidentally happened that they returned on a day they were hearing a mask mandate slash vaccine mandate case um you know the the osha case is a vaccine or test mandate test and mask mandate um perhaps he thought there was a political statement that was his view perhaps if you take the court's not political nina well that's what he would have i guess i Perhaps he thought there was a political statement. That was his view. Perhaps. But the court's not political, Nina.

Well, that's what he would have, I guess, I take from his, some of his law clerks who've been online that he perhaps, we don't know because he's not said anything about this, that he perhaps viewed it as being a political statement. But I guarantee you that the way this is going to end is that Sotomayor, for all her polite viciousness and dissents, is a completely warm and lovable person in person and that she ultimately will probably ask him, please, to mask up, and he'll do it. She will likely do it, and he'll wear it, and then he'll get all the credit for somehow like being the bigger person when in fact he was never the bigger person in this. The only thing I can guarantee is that they will not issue a statement that says Justice

Sotomayor has asked Justice Gorsuch to wear a mask and he is therefore wearing one today. I guarantee you that's not going to happen. But we should say to people who did not maybe follow the whole saga that the joint Gorsuch Sotomayor statement was not the only statement, because as people took to Twitter and the airwaves to point out that the statement was utterly unresponsive to your actual reporting, I presume in response to that, the chief justice put out or the court put out under the name of the chief justice yet another statement later that same day that said, I did not request Justice Gorsuch or any other justice to wear a mask on the bench. So I'm curious why this touched such a nerve. And I'm curious if in your years of reporting on the court, you can remember these this kind of two back to back on the record statements in response

to specific reporting about the court. And if not, like, why did this touch such a nerve? Because they all want to portray themselves, the court, as a very collegial body in which they have the ultimate respect for each other and their contradicting views, which gets us really to the meat of this piece, which is that the court, of course, there are disagreements and even petty dislikes among justices on any court. I mean, these are people who live together for the rest of their lives, some of them. They are stuck there. It's like a dysfunctional family or a dysfunctional marriage without the possibility of divorce. That's the only way I know how to put it. And now there is a conservative supermajority that means that for all practical purposes, the three liberals, who I would have to say, certainly Sotomayor is the quote, most liberal of the three,

but none of them are what I would call flamethrowers. I mean, we all know judges who are flamethrowers. It's very clear who they are and their degrees of flamethrowing, and none of these people falls in that category. They know they're not going to prevail in most of the cases that are deeply controversial now, but wouldn't have been 10 years ago. You can look at the OSHA case as an example, and I don't think that, I think there was a possibility that in the era of Scalia, that he might have signed on, you know, upheld those regs, because he was far more deferential to agencies than the majority, the conservative majority is on this court. They are deeply suspicious of any regulatory regime and have very set views on undoing decades and decades of law about that. So now these three guys are

sitting there who are sort of the quintessential post-New Deal regulators. Breyer was a leading authority on the administrative state. And they can't, they sort of can't believe their eyes. And when you watch them, and of course, when they weren't wearing a mask, it was clearer. There have been occasions when you could see Kagan, literally her pale, the color dropped from her face and she should her reaction when she gets like that most of the time i mean there was one time recently where in a moment she said you can't really mean that down that road lies madness but most of the time she doesn't do that she shuts down and she's one of the best questioners on the court but but she just shuts down. Breyer literally holds his head like

this sometimes. And Sotomayor is the most, well, you can't really say poker face because I haven't seen her on the bench. You can't see her face. She wears a very large mask when she's there and you really, you have to do it all with tone of voice. So these are people who, you know, it's like being behind 12 to nothing, and you're the nothing, and the game's almost over, and you have to keep replaying the game. You know, there's just no way to make that nice for those people. And there's no effort, I think, on the part of the conservatives, by and large, with the possible exception of the Chief Justice in some areas, sort of mitigating the degree of their conservatism in order to try to reach some sort of consensus.

We should note, though, that regardless of the flurry of statements, and I should say there are so many statements that this looked more like a checking account than a court. But regardless of the number of statements that were issued, NPR stood behind your reporting because, of course, they did. Like you stand by your sources and so does the network. Some uncontroverted facts here. Justice Gorsuch isn't wearing a mask. He didn't wear a mask on Wednesday after this was reported and as the court was issuing this flurry of statements. And Justice Sotomayor continues to

be the only justice who is participating remotely at argument and ostensibly at conference. Actually, nobody's contradicted that she's not there at conference either. That's one of the things nobody has contradicted. And in some ways, I think that's worse. Yes. Who's going to, I think that's worse. Yes. Who's going to check me, boo? Nobody. Exactly. So as Nina is alluding to, there's a lot more in the piece we wanted to discuss. And in particular, the second piece of strict scrutiny tea that Nina reports is that nobody, and I mean nobody, fucking likes Neil Gorsuch. So Nina reported, and I quote, Gorsuch from the beginning

of his tenure has proved a prickly justice, not exactly beloved, even by his conservative soulmates on the court. Nina, is Neil Gorsuch the Ted Cruz of the Supreme Court? I think that's going too far. I don't know. You know, the truth is, I don't really know. But I think that Justice Sotomayor, for example, has genuine affection for him. So I, and I don't know any senator who has genuine affection for Ted Cruz. So I don't think that you can, that there's a parallel there. I mean, you're being very generous, Nina. He and Justice Thomas, and in many cases, Justice Alito, feel strongly enough that they will sign on to a majority opinion to make sure that they prevail. But then they will

have a completely different rationale that is far more, for want of a better word, extreme. And so you can see the fissures among the conservatives on the court. And that has been true for years. I remember once I was interviewing Justice Ginsburg, and it was just a little interview that I did at the Japanese embassy, of all things. And it was in June. And it was a musical thing. And she and I were the 15-minute entertainment. And I said to her, and it was in late June, I said,

you've won a lot more cases than most people expected this term. And she said, well, that's because they can't figure out what they think. And she said that. She said, they just are completely divided about what they think. And, you know, in those days when it was 5-4, the liberals understood you stick together or you die. The conservatives have not quite figured out that you don't die, but you don't win the same kinds of victories that are longer standing if you can't sort of get together. I did love that part of the piece about both this sort of speculation about what Justice Scalia would have done, like in the OSHA mandate case, which is to say, you know, he was skeptical of administrative power, but had made an uneasy alliance with the existence of the administrative state. And I think the point you

make about administrative law, I think, is applicable across a wide variety of bodies of law. As there's this vying for the status of intellectual heir of Justice Scalia, there is this one-upsmanship you are seeing, which I think is driving not towards necessarily more and more conservative bottom line outcomes, but these concurring opinions that get increasingly unhinged as each seeks to be standard bearer of conservatism. Again, whatever the specific question is, and I do think you see that tension between Gorsuch and Alito and Thomas, each of whom approaches these questions somewhat differently, Kavanaugh sometimes too. It's an arms race with, I think, some potentially really scary endpoints. The other thing I said in my piece, though, is that I interviewed Noah Feldman for the

piece, and I also had talked to Rich Lazarus, both from Harvard. But Noah Feldman wrote the book Scorpions about the 1940s court and how much these people detested each other. And it's nothing like this. They were quantum leaps ahead of what this is. They were referred to as nine scorpions in a bottle because they couldn't get along. And his point is that some of the great thinking, legal thinking of the time came out of their competition. But I'm not sure that happens here. What is true, though, is that I don't think there is a huge disagreement among them about religion, about abortion, or about guns. And those they will agree on, more or less. And those are the things that drive public opinion about the court, confidence, lack of confidence. And Feldman's

point is that, and to this part, I completely agree with that the court has really had a very, you know, it far exceeds approval ratings for the other branches of government or God knows for journalism. And one of the reasons is that even though it was a quite conservative court, as long as it was five to four with some centrist there, you know, whether it was O'Connor, then less of a centrist actually, Kennedy, but still a centrist, that the court was always giving, and even to a lesser degree, the Chief Justice, Chief Justice Roberts, the court was always giving some victories to the left and some to the right, and people thought the court was generally fair and it was respected. And while today it's

preposterous to think of the idea of some Democratic president with a Democratic Congress packing the court. It was preposterous probably 10 years ago to think of a court this conservative. And so to say that, oh, that's just nonsense, it's not going to and it could spend it all at once. And I'm not sure what the results would be. So another thing we wanted to touch on the piece is kind of a point of interest of ours, which is you confirmed in the piece Sam Alito's not so subtle hatred for the chief justice, writing that Alito on occasion barely conceals his disdain for Roberts. But intriguingly, you report that it's not just because of the chief's wayward, squishy votes in cases like the Affordable Care Act and others. So where does the antipathy you described come from, Nina? Well, I don't think he hates him, but I've always been puzzled because

he gets really good assignments from the chief. He gets lots of big cases to write. Maybe he doesn't like, there are often cases that the chief might not want to write himself. So maybe he feels like he's carrying the water for the chief justice. But the other thing is that at one point in 2005, he thought he was going to become chief justice. And this is an accident of fate and timing. So many of the young people watching this, perhaps all of them, will not be able to remember what was going on then. Chief Justice Rehnquist had thyroid cancer of the worst sort. It's not a kind of thyroid cancer most people get. And he really, everybody knew that he was dying. And he had a trache, a tracheostomy. He went to court with a tracheostomy. He swore in President Bush with a tracheostomy. He was desperately ill and everybody knew it and everybody expected him to die and certainly to retire at the end of the term if he

hadn't died. So we get to the end of June and now the Bush White House is preparing for that. It has a list of potential replacements. And the story that I've been told by several different sources is that Sam Alito was, in fact, at the top of that list. I don't think he was actually interviewed yet, because I think that they would have worried that it would have gotten out that they were presupposing that Rehnquist was going to leave. And he somehow knew that probably from his law clerks who worked at the White House at the time. Anyway, he thinks he is expecting that if the chief retires, he will become chief justice. But Rehnquist doesn't retire. Instead, O'Connor retires. And after a brief flirtation that went bad of trying to replace

O'Connor with a woman, President Bush named John Roberts to become associate justice on the United States Supreme Court. And that was in, I guess, in July. By early September, he's just about to have his confirmation hearing, just about, I mean, within days. And Rehnquist dies. And you could just, you can hear it, you know, what went on at the White House. Oh, my God, oh, my God, oh, my God, tearing your hair out, oh, my God. And, okay, let's do the easy thing. Robert sailed through his confirmation hearings. He's going to get a bunch of Democratic votes. This will be easy. Let's just go ahead, withdraw his nomination as associate justice, nominate him to chief, and we'll slot in Sam Alito in the second

position. And that's what they did. And he was confirmed within a month, I think, and that is Roberts was. And Sam Alito basically had a bit of a rocky confirmation hearing. And he went on to be confirmed in February, with O'Connor staying on just to be there and help out until he was sworn in. So you can see that in almost like a nanosecond, he watched his chances to become Chief Justice evaporate. So is Sam Alito walking around thinking, I was supposed to be the Chief Justice? And I would never, I just want to make clear, I would never ask you to reveal a source, but question, does Sam Alito angrily text you after a hard day's work or a bad day's work and say, I was supposed to be the chief justice? You don't have to answer that question.

I'm just going to assume the answer is yes. I think this is more subconscious than conscious. I really think, you know, that's a long time ago by now. It's what, 16 years ago? But your reporting is new. But some grudges never die. This is some real Virgo energy. Some grudges never die, but I don't think he runs, you know, he has plenty of other grievances to dwell on. True, true. But I am curious, having, you know,

two denials of specific issues, you know, pieces, items in your story issued from the court, I wonder whether his silence, his non-denial speaks volumes about the accuracy of this reporting. But I also wonder whether it's going to make this, his refutation is going to make its way into one of his future speeches, because we know he reads bad press and sometimes responds to it. Maybe. I hope not. Or maybe he. Or maybe he was just sort of happy to have it out there that he could have been, would have been, should have been chief justice. That's the energy.

The once in future chief justice, I think, is the energy. But can we just dwell for a minute on the incredible entitlement to sort of expect that and possibly be aggrieved when you only get to be an associate justice? Sam Alito is the real victim in all this. You know, he deserved to be that chief justice, and now he has to live the rest of his days as a mere associate justice on the Supreme Court. It is peak Grievalito.

As we know, being chief justice is hard work, and you have to be pretty deft to do it. And this chief is pretty deft, but I think he has, Alito has very powerful views, particularly about religion and abortion. And I think those motivate him very much. I am just imagining a world in which Sam Alito is the chief justice of the Supreme Court. And that is a very different Supreme Court and a very different chief justice than the one we have now. So gave us a lot to think about. Chief Alito, is that the name? I don't know. I'm not going there. I cover this institution. I do not go there. This is for you. Lefty commentators. I'm not going there. I'm just just saying what other people would say if I had one word to say about this. We're gonna make a shirt though that just says lefty commentators. That's Oh, I think That would not be bad. In the company, in the company that you keep, it would be great. For me, not so good. That's fair. Thank you, Nina, so much for joining us to talk about the article and all of the

responses to it. We greatly appreciate your time. I want to thank you for including me. I love it whenever I do a podcast, this one or any of the NPR podcasts where we're all women. And somehow the conversation is somewhat different. It really is. So I'm going to say goodbye and let you gossip in your own time. I got to work. Thank you, Nina. Putting the T in Totenberg. Nina Totenberg. Thank you. Take care. Bye.

We should move on to other court culture. In less impressive Supreme Court commentators who were also in the news this week. Who are not invited guests on this podcast. Nope. On Monday, January 17th, MLK Day, CNN correspondent Jeffrey Toobin tweeted out the following. Imminent Supreme Court retirement? Favorites? Katonji Brown-Jackson. Spelled incorrectly. I'm not going to pronounce the word, whatever, however you spell it. It was not Katonji Brown-Jackson's actual spelling.

D.C. Circuit, Leandra Kruger, California Supreme Court, long shot, VP Kamala Harris. Stay tuned to CNN for news. Hashtag SCOTUS. I will say,

Joe Patrice of Above the Law had the funniest tweet ever about the misspelling of Katonji Brown-Jackson's name. That was amazing. Oh, what did he say? I didn't see it. She's not going to say it on air.

I can't say it again. This is a PG podcast. Except PG-13. 13. Yeah. Anyways, some people got really excited from this tweet. My partner insisted on turning on CNN and monitoring it for news as if this was a signal that there was actually going to be news coming. And I'm thinking, come on. I had people texting me the next day, like, why didn't Breyer retire?

And it was just bizarre. I mean, to the extent this tweet was merely a reminder to Stephen Breyer that he should retire, I guess it was helpful. And, you know, if he doesn't take the advice, I will happily send him a bedazzled mask to wear on the bench that says either mask up Neil or Neil Gorsuch is a sanctimonious fuck. And, you know, law clerks just put it on him before he takes the bench. Don't show it to him. I think this could work. This is a great plan. The retirement, of course, was not to be. It's not clear what Toobin meant by imminent. I suppose really broadly construed this year, six months from now. I felt like I was in criminal law for this one. Like, what is imminent for these purposes? Right. So we're still parsing it. If Breyer does retire at the end of the term or announces like in May or something, then, you know, maybe Jeff Toobin announces he's been

vindicated. But there was really no reason for everyone to get so spun up. Also, like, OK, Judge Jackson, Justice Krueger, like top of everyone's list. V.P. Harris, really? What was that about? Again, the president has said that it will be an African-American woman. I mean, I think just about any Black woman who is a lawyer is on the short list, apparently. But there are a lot of people who were not mentioned, like Sherrilyn Ifill of the, well, still the president and director counsel of the NAACP, but soon to leave that post. Stacey Abrams' name has been mentioned. Michelle Childs, who's been nominated to the D.C. Circuit, could also be on that. So there are a lot of people, not to mention any of the Biden appointees who have recently taken the

bench in the last couple of days, including Holly Thomas, who went up to the Ninth Circuit. Yay, Holly. So there's just a lot of people. VP Kamala Harris, I think, was perhaps floating a test balloon, like maybe Harris might be phased out of VP and transitioned to some other post. And that was a way to kind of do it. I don't know. I don't think he was like being tasked with like floating trial balloons for the White House or anything like that. Well, I mean, given the past couple of months, I would say no. Yeah. I will say I do think it's useful to have non-sitting judge names in circulation. Obviously, Sherilyn sort of is a

terrific example of that. And I just think that normalizing, seriously considering appointing non-sitting judges to appellate courts and even the Supreme Court would be great, right? It would be great if we turn, obviously, that's true about Justice Kagan, but everybody else in there, you know, was a sitting judge, and that seems to be increasingly the norm. And I, you know, I think we all think that it's a problem. But I don't think that Tootie is the only one who realizes that Harris is actually a shortlister and there's some chance she's going to be put on the Supreme Court. Just doesn't seem likely to me. Want to go on to ecclesiastical whack-a-mole since we still have a lot to cover?

Let's talk about some cases since this is a podcast about the Supreme Court and they ostensibly did some work last week. So let's talk a little bit about it. One case that we were watching is Shurtleff v. Boston. So this was the case challenging the city of Boston's decision not to fly the private religious organization's camp constitution's flag on the city's flagpole. Basically, the city displays different organizations' flags on its flagpole, and Camp Constitution, which is a religious organization, wanted to have a flag with some Christian paraphernalia or memorabilia on it flown on Constitution Day. friends sued the city for viewpoint and religious discrimination on the ground that the city didn't fly the flag because it didn't agree with Camp Constitution's message, despite approving virtually all other requests to fly flags. So the lower courts ruled that no, Boston did not have to let

Camp Constitution's flag fly. So the First Circuit relied on the doctrine of government speech, actually, in ruling in favor of Boston and against camp constitution. And the basic framework here is that when the government provides a place for private citizens to speak, it cannot discriminate against viewpoints it doesn't like. But if the government itself is speaking, including when it involves private parties in doing that speaking, the government can pick and choose between different viewpoints. So a useful example I thought came from Sopan Joshi, who was arguing for the federal government, actually on the side of camp constitution, not on the side of Boston. So Joshi said, look, Boston, you know, so think about like the city's website. Boston can solicit private parties to submit pieces like praising the

city, talking about how great Boston is, But it doesn't, by doing so, incur some obligation to also include anti-Boston sentiment on the city's website. So that's government speech, and it's not not government speech just because private parties participate in the speech. So if the flag displays our government speech, this is the First Circuit's holding, you know, it doesn't matter. The city can choose not to fly flags if it doesn't want to, including the camp constitution flag. But if this flag display is a place where the government actually just allows private speech, then the city cannot choose not to display this flag because it doesn't like Camp Constitution and it definitely can't engage in religious discrimination, which is what

Camp Constitution is arguing happened here. So under the rules of ecclesiastical whack-a-mole, because it is a conservative Judeo-Christian group asserting a claim of religious discrimination against a blue government, the religious group is going to win. The answer in all of these cases is yes, there was religious discrimination against the conservatives. The only question is why or what the court will say to reach that conclusion. And honestly, from the oral arguments, I think this case might end up being unanimous in favor of the organization. So first, couldn't help noticing that the lawyer arguing for the challenger here started off kind of almost calling Justice Thomas chief justice. I am beginning to think this is a deliberate effort to make Chief Justice Thomas happen, like literally willing it into being. I mean, he sort of corrected himself. He didn't get all the way through it, but he definitely started to say it.

No, Your Honor. Chief Justice Thomas. There was also a moment where the lawyer who was arguing for the challenger said in response to a question from the chief, the actual chief, not the chief in name only, I guess, that the city couldn't refuse to fly flags supporting discrimination or prejudice. And this prompted a long colloquy between Justice Kagan about whether the city would be required to display a flag with a swastika or a KKK flag. And then, not to be outdone, Justice Brett Kavanaugh intervened to ask. Periodic flags or messages of support and not those that are anti-American. For example, to pick up on Justice Kagan's question, someone wants to fly the Al Qaeda flag at City Hall in Boston. You're saying they would have a right to do so? Bringing it once again back to 9-11, like I told you, always happens. So then our boy Sam came out swinging and he was like, well, hasn't Boston displayed the flag of the People's Republic of China and Cuba? Translation, he thinks they, Boston, are a bunch of communists out to destroy religion.

And he actually asked the lawyer for Boston this. I don't know what the current flag of Afghanistan is, but if it becomes the Taliban flag, would you fly that? That guy was going to be chief justice, just pointing that out. That's still sinking in. Justice Breyer at one point tried to ask a question about whether people would perceive the flags as government speech because someone looking at where they're being flown would see City Hall. But Justice Kagan basically had to restate the question as government speech because someone looking at where they've been, where they're being flown would see City Hall.

But Justice Kagan basically had to restate the question as a question. The court was actually testing whether this, the city's flagpole displays were government speech, in part by noting that the mayor had flown the Montreal Canadiens flag, apparently a hockey team, I wouldn't know, after they defeated the Boston Bruins. And that was apparently because of some bet between the mayors of Boston and someplace else. Montreal. I don't know. It checks out.

I will say, though, so there seemed not to be a ton of concern about invalidating this policy because the city could adapt in a couple of ways. One, it might do something or set of things to make clearer that, you know, these flags are government speech. They're not just, you know, private speech happening on government property. But some of the sort of, you know, teasing out ways the government could do that actually seemed to me pretty burdensome. Like having city officials like literally stand next to the flagpole, make it clear it's, you know, this is a government flagpole. Like, I don't know, city workers have other things to do. That seems like a weird use of their time. Some of that just made me think that cities would maybe just abandon doing this sort of thing at all, like offering up civic spaces for, you know, private groups to broadcast

their messages in various fashions. So that was one thing Boston could do to adapt if it was conducting itself impermissibly here. And two, that it could define a policy in a way that limited it to certain subject matters, like flags honoring national holidays or certain categories of speakers, and that maybe that would also obviate the kinds of concerns that arise under the plan as Boston currently carries it out. So there were also two kind of revealing moments at the argument that we wanted to highlight. One was a clip from Justice Gorsuch. I understand that Mr. Rooney said that he thought it was concerned about the so-called separation of state, a church and state, or the Constitution's establishment clause. Watch this space. That is not going to be a principal suit.

The establishment clause could become the disestablished clause. There was also a very self-aware moment from Justice Breyer. Oddly enough, I'm sure this is a useless question, but you would have thought after reading the SG's brief, if they really want to have government speech, it's not too hard for them to arrange it. And they didn't pay too much attention in the past, like zero. And can't it be settled?

I mean, you would have thought what's past is past. Let's look to the future. See what Boston wants. You might not disagree. I don't know. It's a really good question when you listen to this oral argument. All right. Should we move on to the next case?

Sure. So the court also heard oral argument in Cassier v. Thyssen-Borna Mesa Collection Foundation, an important civil procedure case about whether federal courts hearing state law claims under the Foreign Sovereign Immunities Act, a federal statute that allows you to sue foreign states and officials in some instances. Anyways, when a federal court hears such a case, whether the court must apply a state's choice of law rules, the set of rules that determine what body of law applies, or whether it can instead apply federal common law. So choice of law rules tell you what law to apply when there

are a few possible options. Imagine that I'm a Michigan resident. I go to California to buy a car. The car is made in Arizona. And as I'm driving back to Michigan, the car crashes because of a design malfunction, and I get into an accident in Kansas. Does Michigan tort law? Does California tort law? Does Arizona tort law? Does Kansas tort law apply to the case? That's the question that choice of law rules are designed to answer. And the question in this case is whether a federal court must apply state or federal choice of law rules. The case itself is about efforts to recover a French Impressionist painting by Camille Pissarro. The painting was stolen by the Nazis in exchange for allowing a family to flee Germany, and it now sits in a Spanish museum.

So the heirs to the painting's owner sued the Spanish museum in federal court. The German Republic gave the family $13,000 after the fall of the Nazi regime, but the painting is worth $40 million today. So we're not going to get into the details of this case, but we will just note some really fantastic advocacy. So Masha Hansford, who argued for the Solicitor General's office, was absolutely terrific. So shout out to her. And we also want to note for all of the law students listening, especially 1Ls, the decision about whether the federal court should apply state or federal common law turns on the Erie Doctrine, one of the most famous cases ever and one of the most

vexing cases in civil procedure. That was the case, of course, where the court announced that there is no federal common law and that the law is not some brooding omnipresence in the sky. So the court also heard Concepcion v. United States, an important resentencing case about the First Step Act. We're going to hold off on a recap of this case until next week so I can give it the attention that it deserves, which is all of the attention. So the other case the court heard this week that we are not going to talk about today was FEC versus Ted Cruz for Senate. That case, a case about campaign finance regulation, tragically did not include Ted Cruz arguing the

case himself, as we had speculated it might. But it was interesting nonetheless. And we're going to hold off on recapping that one and do it instead next week as part of another live show for Glow supporters. And we have a very special guest lined up for you as part of that episode. So stay tuned. It's Ted Cruz. Snowflake is invited, but not. Yes. All right. Let's move on to a little court culture. So we should note that the Fifth Circuit released its opinion certifying a question about the proper interpretation of SB8 to the Texas Supreme Court. Boom, lawyered. Bottom line is this means the Fifth Circuit is laying out a process that will keep Texas SB8 on the books and being enforced,

thus keeping abortion clinics largely shuttered while the Texas Supreme Court weighs in. So again, when SCOTUS decided the SB8 case, people were like, this is a win, this is a win. We did not say that, of course, but other people said it. But that was two months ago, right? I mean, a month and a half, basically. And still, there has been no change in the landscape of abortion access in Texas. Like, it's very difficult to access safe and legal abortion in Texas if you are beyond the sixth week of pregnancy. So again, no real changes there. And I guess at least the

Fifth Circuit didn't decide to hold on to the case to see if SCOTUS overturns Roe at the end of this term as Judge Edith Jones floated during oral argument in that case. And we didn't see that yet. But again, watch this space. The decision was expected, but we did want to highlight some aspects of the dissent by Judge Higginson. The decision was 2-1 with Judge Jones, who Melissa just alluded to, and also Judge Stuart Kyle Duncan in the majority. So Higginson, in dissent, accused the majority of disobeying the Supreme Court's mandate. The court had stated that its holding was that eight justices hold that this case may proceed past the motion to dismiss stage against the state licensing officials. And Higginson said it was so the Fifth Circuit's action was inconsistent with the mandate and also inconsistent with the Supreme Court's expeditious handling of the case. It scheduled arguments quickly. It decided the case quickly. And the Fifth Circuit is acting the opposite of expeditiously in terms of its handling of the case. Judge Higginson's dissent also had a very pointed reference to how some federal judges during the aftermath of Brown

versus Board of Education, the decision invalidating segregation in public schools, undertook numerous procedural maneuvers in order to avoid enforcing Brown and avoid implementing desegregation, and in fact, judicially facilitated massive resistance to Brown. So Judge Higginson quoted Judge J. Skelly Wright as saying as follows about the decisions requiring schools to undertake efforts to desegregate. Quote, I did it because the Supreme Court had said it and there wasn't any way out except subterfuge. Other judges were using subterfuge to get around the Supreme Court, delays and so on, but I grew up around the federal courts and had respect

for them, and I tried to carry on tradition. So after Judge Higginson quoted that passage, he wrote, then, like now, it is undisputed that the Constitution necessarily expounded by the Supreme Court had been subverted by a state legislature. This would also seems like an opportune time to note that another Democratic appointee on the Fifth Circuit, Judge Greg Costa, who sits, I believe, in Houston, Texas, informed the White House that he is straight up resigning his position effective August 2022. And this is noteworthy because Judge Costa is extremely young. He's only 49 years old, and he was appointed by President Obama in 2014. And basically, he's like, eight years around these guys is just way too much for Greg

Costa. I'm out. That seems to be the energy. Yeah. He's not taking senior status. He's ineligible. No, he's like, I'm out. I literally am just peace out. So that will give President Biden an opportunity to add another judge to the Fifth Circuit. It obviously doesn't change the ideological balance on that court, but it is noteworthy that, I mean, can a workplace be that corrosive that you just literally cannot keep your lifetime tenure and just, I mean, hold on. Is Sonia Sotomayor like, oh, interesting. Is that an option?

Can I bounce? I hope that is not the case. Well, thank you for your service, Judge Costa. We get that this might have been a hard row to hoe. Yes. So the Fifth Circuit issued this decision certifying a question to the Texas Supreme Court. The Texas Supreme Court has since accepted certification, no surprise, and has said that it will set oral argument on the matter at a later date, thus further running out the

clock and keeping SB-8 on the books. So we have indeed been boom-lawyered by the Texas Supreme Court. So in more SB8 news, the Supreme Court of the by Justices Breyer and Kagan, wrote, quote, This case is a disaster for the rule of law and a grave disservice to women in Texas who have a right to control their own bodies. I will not stand by silently as a state continues to nullify this constitutional guarantee. I dissent. Note that is not a respectfully dissent. There were some male commentators on Twitter being like, oh, like, wow, she didn't say respectfully. Is that a thing? I wonder. And it's like, dudes, if you bothered to listen to people actually following the Supreme Court, you would note we had highlighted

Justice Sotomayor's statement. I respectfully dissent for now. For now. For now, I respectfully dissent in FDA versus ACOG, the case about the FDA's in-person dispensation requirement for one of the medication abortion pills. So yes, this is a thing. It is something she had previewed. Basically, you guys have exhausted my patience.

Like, I'm done. I mean, this is big mom with two kids at home on Zoom school energy from Justice Sotomayor. Anyway, she also writes, today for the fourth time, this court declines to protect pregnant Texans from egregious violations of their constitutional rights. And I think this augments the nullification language that she used earlier, which I think, again, was as purposeful as the absence of respectfully. There was also that opening, which was great. She said in her opening, the court may look the other way, but I cannot. That is, by the way, now on strict scrutiny mugs.

Just FYI. Justice Sotomayor also cited Judge Jones' comments at the oral argument on the certification motion. Judge Jones saying, why don't we just hold this case? Because there's a possibility that the Supreme Court might overrule Roe and so they could just sit on it until the end of June rather than having to actually respect precedent.

Justice Breyer also wrote a separate dissent. I got a question. Why? Why? Why? Why? Why? Nope. Nope. Limited number of hours in a day. Like this is like when John Mayer decided to redo Beyonce's XO. Why? Why was this necessary? Like it was a great dissent. Just sign it and keep it pushing. We need no convincing of this. Yes. Yeah. One other Supreme Court development. We wanted to mention that the Supreme Court rebuffed former President Trump's efforts to block the January 6th committee from

accessing certain White House records in the possession of the National Archives. So the D.C. Circuit had rejected Trump's arguments that as a former president, he got to make the call on whether documents were subject to executive privilege, even where, as here, the incumbent president said the pressing national need for these documents outweighed any privilege concerns. So D.C. Circuit wrote a thoughtful, like almost 70 page opinion, really, really rejecting all of Trump's bad arguments. Trump went to court seeking a stay and an injunction to prevent the documents from being turned over. So this is one of these cases where I was like, surely the court is not going to buy these garbage arguments. And you guys were like, I don't – your optimism is sometimes misplaced. And it is sometimes.

But here at least I was vindicated. And maybe because – I'm going to claim vindication in this one. Yes, Melissa. There was one person who registered his objections and another person who wrote a separate concurrence to suggest that the real question here, whether a former president could claim executive privilege over the objections of a sitting president, that was still a live question. It wasn't perfectly clear. And there was an order, right? So it was. So Trump doesn't. The documents are now already in the possession of the January 6th committee.

So bottom line, like his, Trump's efforts to thwart this committee, at least in, with respect to these several hundred pages of records, were totally unsuccessful. So that bottom line, I do think is actually quite significant. But you're right that the court made very clear

it was only deciding, it was essentially deciding that because the DC Circuit had held that Trump's arguments were so bad that even if he were the incumbent president, there was no way he would prevail in his executive privilege claim. And Justice Thomas still couldn't sign on to that. Yeah. He didn't explain himself. It was pretty interesting.

He just like wrote separately. Basically, it was like I vote with Trump but said nothing about what. Does anyone remember when he was like the justice handpick to swear Amy Coney Barrett in at the fake installation at the White House? We all remember it. Well, do you? OK, because I think people forget about that. I'm just like, this is weird. Yeah. So he literally just cast a vote with no explanation to say, you know, no, I would grant this stay. I would let these documents be withheld from the committee. And then Kavanaugh wrote a separate statement that in which he repeated several times that the DC circuit's discussion of president Trump's status

as a former president should be viewed as non-binding dicta. He like said it a bunch of times, kind of a weird way. And also just reiterated his view that the constitution cares deeply about the principle that what happens at the white house stays at the white house. That was basically the rest of his three page writing. He's like, I've been there. Nobody wants their White House materials, even years later, to be disclosed. Okay. So we are running long, and there were some wonderful pieces we had wanted to cover on this episode that we will probably save for a future episode, including Jane Mayer's stunning story describing Ginny Thomas's advocacy related to the insurrection in and around the court. It's a wild story. No, I mean, Jane Mayer heard Nina Totenberg's story and was like, Nina, hold my tea.

This is a lot of tea. There's a lot of tea for two weeks. Two weeks of tea. There is a lot there. There was also an update about the story of the allegations against Chief Judge William Pryor on the 11th Circuit hiring a law clerk who allegedly sent racist text messages. So the complaint against Judge Pryor and others had kind of submitted to the court. And so that's also worth checking out. But again, there was so much this week, we cannot possibly cover everything. So thank you, everyone, for

listening. Thank you to Nina putting the T in Totenberg for joining us for this wonderful discussion. Thanks to Melody Rowell, our wonderful producer who definitely has a lot of IT hiccups to work around this particular episode. Thanks to Eddie Cooper for making our music. Thank you to the American Constitution Society chapters at Yale Law School, NYU, Berkeley, and Buffalo for inviting us to do this live show. Thanks, everyone.