Strict Scrutiny - Repeat Players

Episode Date: October 28, 2019

Leah and Jaime recap some of the Supreme Court’s October cases, including Ramos v. Louisiana, Mathena v. Malvo, and Aurelius Investment v. Puerto Rico. Then they pretend the Supreme Court had no additional cert grants before leaving listeners with a deep thought … slash question. Follow us on Instagram, Twitter, Threads, and Bluesky

Here we go. Let's do this. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome to Strict Scrutiny, a Supreme Court podcast so fierce it's fatal in fact. I'm Jamie Santos. And I'm Leah Littman. And we are your hosts for today's episode. How are you doing, Leah? I'm doing pretty well. Obviously, Melissa couldn't be here since she's too busy being a Supreme Court shortlister. I'm not quite sure what Kate's excuse is, though. Do you think Melissa would hire me as her law clerk? I mean, I've already put it in application, so I kind of hope so. She's going to have a pretty cool first term in chambers.

All right. I think we should just jump right in because we have a whole bunch of cool stuff. We have a great episode today, jam-packed with updates about the court's October sitting. And so first, we're going to recap some arguments the court heard over the last three weeks. But you might notice that we're not covering the Title VII cases because there's a whole separate episode for that because the cases are so important, they deserve their own episode. And then we're also at the end going to talk about a couple of cert grants that were just granted. And I'm guessing that by the time this episode airs, there might be a couple other cert

grants. So we'll just have to tweet about those. Exactly. All right, Leah. So let's jump in. What is our first case? So the first case is Ramos versus Louisiana. And this case involves the question about whether the Sixth Amendment right to a unanimous jury, assuming such a right exists, which we'll get to in a second, is incorporated against the states. So basically, by way of background, the Sixth Amendment says that criminal defendants have the right to a trial by jury. And a couple, I think in the mid-20th century, the Supreme Court held that that Sixth Amendment requirement also requires unanimity in jury verdicts. You can't have 10 twos and get convicted

of a crime. You have to have a unanimous jury verdict. But they only held that as to federal cases brought by the federal government. And then in 1972, the court decided this case called Apodaca v. Oregon. And I love the name of that case. And the justices just kept saying it all day. And I loved it. But basically, Apodaca looked at whether the unanimity requirement applies to the states through the 14th Amendment. And that's, as you mentioned, that's something called incorporation. So Apodaca was kind of weird. What happened in it, Leah? Yeah, so the case was really

reminiscent of a case that the Supreme Court heard recently, Tims versus Indiana last term, which was also a question about incorporation. And Tims involved the question about whether the prohibition on excessive fines was incorporated against the states. And the reason why it was reminiscent of Tims is because the state and the justices seemed to understand that it was a pretty uphill battle at this point to argue that a right that applies to the federal government does not apply equally or isn't incorporated against the state. So what the state ended up doing was instead of arguing that whatever the Sixth Amendment right that exists isn't incorporated against the states, the state wanted to argue about what the Sixth Amendment right to a jury trial actually includes and whether it includes a right to a unanimous jury. But the thing that made this case different from Tim's is that there was a prior case that already held that it's not incorporated, right?

Right, exactly. Whereas in Tim's, the Supreme Court had never previously addressed whether the prohibition on excessive fines was incorporated against the states. Here, the Supreme Court had specifically held that whatever the Sixth Amendment right to a jury trial with respect to unanimity is, that is not incorporated against the states. Right. And so that was the Apodaca case. And it was kind of a weird one because there was no majority opinion. There was no majority that actually would sign on to an opinion saying there is a Sixth Amendment right to a unanimous jury and it's incorporated. Instead, you had four justices who said that it applies to the states through incorporation, four justices who said we would overturn our prior holding that there is a

unanimous guarantee at all, and then one justice alone who said, you know, if there is this requirement, it definitely doesn't apply to the states. And so that one justice alone who said, you know, if there is this requirement, it definitely doesn't apply to the states. And so that one justice's opinion is what rules the day. Yeah. And so that unique split among the justices, this 4-1-4 vote breakdown, is related to the difference between this case Ramos and the Supreme Court's previous decision in Tims, and specifically whether it mattered that there is that earlier Supreme Court decision that had said, no, the right to unanimous jury doesn't apply to the states. In order to establish why the state was making these alternative arguments on the merits, it's useful to understand what happened in Tims and specifically how not receptive the justices were to the argument that a right that applies to the

federal government does not apply equally and isn't incorporated against the state. So we're going to play two clips from Tim's, one from Justice Gorsuch and one from Justice Kavanaugh, both expressing considerable skepticism to the state's argument that a right that applies to the federal government doesn't apply to the states. But whatever the excessifying clause guarantees, we can argue again about its scope and in rem and in personam, but whatever it in fact is, it applies against the states. Most of these incorporation cases took place in like the 1940s. And here we are in 2018, still litigating incorporation of the Bill of Rights. Really? Come on, General. For the clause, why do you have to take into account all of the history to pick up on Justice Gorsuch's question? Isn't it just too late in the day to

argue that any of the Bill of Rights is not incorporated? But aren't all the Bill of Rights at this point in our conception of what they stand for, the history of each of them incorporated? Leah, I have to say that for someone who wrote a whole book about civility that, come on, general, was not maybe the most civil way to question someone during an argument. It is utterly shocking to me that Justice Gorsuch does not live up to his grandiose calls for civility. Yeah, and especially since it was only a few years after Heller where this incorporation issue came up in the Second Amendment context. So it's not like it's really that absurd of an argument. Well, it's also not absurd because we don't have a doctrine of total incorporation. That is, the reason why some

provisions apply to the states is not because the 14th Amendment applies every single Bill of Rights provision to the states. It instead only applies those Bill of Rights provisions to the states that are implicit in the concept of order of liberty and fundamental to the Anglo-American conception of order of justice. And so that is a doctrine of selective incorporation, not total incorporation. So it's simply not the case that every single Bill of Rights provision automatically applies to the states. Rather, you have to go through this freestanding legal test to determine whether a bill of

rights provision applies to the states. Right. OK. So here we've got, you know, so we have this Tim's background where we know that two of the conservative justices who you really, really, really want to get to win basically don't believe in selective incorporation anymore. And on the other hand, you've got a prior case from 19, I think, 48 already holding in the way you want to come out. So what do you do? Do you argue stare decisis? Do you argue something else? And what did the state do here?

So the state wanted to argue that something else that you were alluding to, specifically that the Sixth Amendment doesn't actually require unanimity. Like ever, literally at all, even in federal cases. Right, period. Even against federal cases and, you know, not against the states either. And the justices didn't seem to like that argument selection. Rather, they wanted the state to argue that no, assuming or even if the Sixth Amendment does include this requirement of unanimity, it doesn't apply to the states either because of the doctrine of selective incorporation or because you, Supreme Court, have already decided this issue. So let's play an argument clip from Justice Kavanaugh asking the advocate representing Louisiana why she was not arguing against incorporation.

For the sake of argument, assume that I think the Sixth Amendment requires a unanimous jury, just for the sake of argument. What are your best arguments then for why the right is not incorporated and relatedly your best arguments for not overruling Apodaca, which is read, the opposing counsel says, to have allowed the states to do that. Justice Kavanaugh, they are conceitedly not very good. I mean, I think that based on Tim's, that we recognize that this Court, at least at this point in time, has taken a view of

incorporation that says that there's no daylight. So if you find that unanimity is required, I find myself in a far more difficult position. You know, she doesn't seem to think that she has a great argument if the Supreme Court thinks that the Sixth Amendment does require unanimity. But it wasn't just Justice Kavanaugh who wanted to make her to make this argument. It was also Justice Kagan, who was really, I think, fixated on this difference we were alluding to earlier between this case and Tim's, which is you have a prior Supreme Court decision that is nominally entitled to the kind of respect that all Supreme Court decisions are that has already resolved this issue. So why aren't you relying on the doctrine of

story decisis? OK, so here's what Justice Kagan said. More difficult position. Well, yes and no. Yes and no, General Merrill, because you have this stare decisis, except you're giving it away. And I don't know what to make of that, because I would think that what you would do is to say something like, this is an outlier in our incorporation doctrine. There's no question that it is. But it's been an outlier in our incorporation doctrine. There's no question that it is, but it's been an outlier for 50 years. It's been completely administrable. It's been

completely clear. States have had every right to rely on this for 50 years. It doesn't matter whether it was wrong, because overruling something requires more than just that a decision be wrong. It's been there. States have relied on it. There's no reason to change it. The end. Stare decisis. But you're telling me that Justice Powell's opinion isn't entitled to precedential force, isn't entitled to stare decisis effect. So I don't know what to do with that argument anymore. Okay. So I have to say I found the state strategy a bit confounding. I feel like, you know, you're the state in a criminal case in a court where the conservatives have not been super criminal defendant friendly,

and the liberals have spent the last year hammering the importance of stare decisis, and you're completely abandoning an absolutely solid, you know, 70 year or 50 year, whatever stare decisis argument. And I felt a little bit like I was in the Twilight Zone listening to the argument and hearing Justice Kagan's frustration about how things were going. And then even later, Justice Alito said something like, you know, this non-incorporation, that's not a crazy argument. Like, well, you know, why don't you give it a try? And it was so strange to me. Yeah. So I want to come back to another point that Justice Alito raised, which is, as you were suggesting earlier, you know, you were arguing before a court in which not all of the conservative justices are super receptive to arguments on behalf of criminal defendants, including Justice Alito.

And so Justice Alito is inviting the Solicitor General to make an argument because obviously he's perhaps not particularly inclined to rule for the criminal defendant. And so he does so essentially by trolling the progressive justices on the ground that they had previously lectured him and other justices about how important stare decisis is. And so naturally that meant stare decisis has to mean you can't rule for a criminal defendant. So why don't we just play that clip here? You are asking us to overrule Apodaca. So we do have to think about stare decisis. And last term, the majority was lectured pretty sternly in a couple of dissents about the importance of stare decisis and about the impropriety of overruling established rules. I'm thinking about the dissent in the Franchise Tax

Board and the dissent in Nick v. Township of Scott. And a very important consideration in considering stare decisis is reliance. So it would be helpful to me if you could compare the reliance that's at issue here. Louisiana and Oregon have tried thousands of cases in reliance on Apodaca. The Court said this was okay. We've never suggested that it wasn't. We've denied cert in lots of cases. So can you compare the reliance here with the reliance in Franchise Tax Board and in Nick? So Leah, when I first listened to this, I first felt really annoyed at Justice Alito,

given his opinion in Janus, which I feel like I'm still sore over. But you know, I'm going to give this grade A trolling. This is pretty decent. Oh, yeah, you have to give it to Justice Alito. You know, I do not to give this grade A trolling. This is pretty decent. Oh, yeah. You have to give it to Justice Alito. You know, I do not often agree with him, but he asks really good questions. And in particular, he just has this kind of like self-satisfied,

like I can stick it to you thing about him. And he's clearly doing that here. And so there's another justice who is not so keen on stare decisis, right? Oh, yeah. Well, actually, perhaps several of them. But here, I think you were referring to Justice Gorsuch, who, you know, in his opinion, last term in Gamble had already kind of raised some questions about stare decisis in addition to his separate writing in Kaiser. So here at the argument in Ramos, he basically offers up a reason why perhaps stare decisis shouldn't be that significant of a factor here. Under alliance interests, you say we should worry about the 32,000 people imprisoned. One might wonder whether we should worry about their interests under the Sixth Amendment as well.

And then I can't help but wonder, well, should we forever ensconce an incorrect view of the United States Constitution for perpetuity for all states and all people, denying them a right that we believe was originally given to them because of 32,000 criminal convictions in Louisiana. So basically saying if there is a violation of constitutional rights, then even the potential of letting 32,000 people out of prison is not as much of a concern to me as the rights itself, which I actually thought, you know, wait a minute, I thought you were really worried about social upheaval. But that I think applies only to the Title VII context. Though, to be fair, there is a difference between constitutional rights and statutory rights,

where Congress can change the statute. And as he talked about, you know, are we enshrining forever in the Constitution this principle just because of stare decisis? Yeah. Well, so I think that on this particular question here about why perhaps the state's interest in reliance might be less weighty, another reason to think that maybe he's onto something is that there are other doctrines besides stare decisis that protect the state's reliance interest in criminal cases, particularly all of the procedural rules

that prevent courts from granting relief to defendants who were convicted and sentenced a long time ago under then controlling precedent, doctrines like retroactivity, which we'll talk about later, or doctrines like procedural default. And so there are already doctrines that kind of protect the state's reliance interests in the finality in criminal convictions, such that perhaps stare decisis, the reliance interests here, at least the state's reliance interest in the finality and criminal convictions, such that perhaps stare decisis, the reliance interest here, at least the state's reliance interest on its prior criminal convictions and sentences, is perhaps not as significant as reliance interest elsewhere. Yeah. And another kind of two things on that reliance point is, you know, that first, almost every state has the unanimous jury requirement, right? Is it

just Louisiana or maybe just Louisiana? It's Oregon. Okay, Oregon and Louisiana. So it's not, you know, so creating a 50-state rule based on something, reliance interest of two states seems sketchy, and maybe even more so because here, Louisiana has already changed the law. Exactly. In 2018, they changed the law and created a unanimous jury requirement. So it's not like there's reliance interest even going forward.

Yeah. So I think that some of the justices' fixations on stare decisis was, as we've alluded to earlier when we've talked about stare decisis, really done with an eye toward a concern about what the Supreme Court was going to do about other precedents. All roads lead to Roe. Well, arguably here, the roads didn't lead to Roe, although Roe did come up at the oral argument when Justice Breyer asked the advocate representing Louisiana about the stare decisis interest. So why don't we play that clip here?

If I believe, one, contrary to what you say, I assume it, I believe that, in fact, the federal right in the Constitution does include unanimity in the Sixth Amendment. And two, I think that thereafter it was fairly clear in the law that same — the federal rules apply to states if we incorporate. But you do have a point if you say there are anomalies in the law, and perhaps we should leave the anomaly alone. And that's where you bring in your reason, the reason being that 32,000 people, et cetera. Okay, I got that structure. Is there any other instance you can think of where, despite a contradiction, which you're allowing, under my assumptions, to remain, a legal contradiction, the Court says, okay, because let sleeping dogs lie. Otherwise, we get serious harm. Just a footnote.

That's not taken care of by Teague and the other doctrines your adversary talked about. Your Honor, I think that one of the significant lines of jurisprudence that comes to my mind is Roe. I mean, I, you know, hesitate to bring that into this, but I do think that's an area. And I think that any time you have a non-textual right that the Court has relied on, discussed, related to in passing, I mean, or quoted in passing over time, and changed incorporation doctrine, that it is that much more important to get the text and the history right. So that was a little awkward. But I actually think that the precedent that some of the justices who were invoking stare decisis had in mind was not Roe, but perhaps another precedent that people might be concerned could be overruled in the near

future. And that is Bakke versus University of California. What was Bakke? Bakke is the decision that suggested some permissible rationales for race-conscious remedies in the context of school admission. So Bakke addressed the University of California Medical School's admissions policy, which at the time reserved a certain number of slots for underrepresented minorities. And the breakdown in that decision was like the breakdown in Apodaca, 4-1-4. And the one justice, the one justice in the middle was like in Apodaca, Justice Powell. And what Justice Powell said is you can't use race conscious remedies to remedy past discrimination unless they're tied to remedying specific constitutional violations. Instead, you can only use them for purposes of enhancing diversity.

And so I think the justices who were invoking stare decisis were concerned when the advocates were suggesting Apodaca was perhaps entitled to less precedential respect and less precedential weight because it was a 414 breakdown. Because if that's right, then that suggests it should be easier to overrule Bakke and race-conscious admissions and race-conscious remedies as well. And with the Harvard case coming up the pipeline, that is very much at the front of the mind of probably some of the justices. Exactly. So let's play a clip from Justice Kagan, who I think this was definitely on her mind. You started off, and then I told you to stop, but I thought I'd give you an opportunity to do it again. I mean, what are we to make of this 414 reasoning of Apodaca?

And what do you think the rule should be about stare decisis going forward? Do you need a majority? Do you just need a controlling rule? What's the right way to think about that? So there's one other aspect of this argument that was really interesting to me, and that was Justice Kavanaugh and how, because we know when we're talking about jury issues, he has some thoughts on juries and he's written about juries and he was in the majority. He wrote Flowers. Didn't he write Flowers? Or was he just in the majority? No, he wrote Flowers versus

Mississippi, which is the decision from last term that overturned the murder conviction of Curtis Flowers on the ground that the prosecutor had impermissibly removed jurors on the basis of race. And so what did he come up in this argument? Yeah, so in Ramos, he wanted to know about the possible reasons why Louisiana had allowed for non-unanimous juries, because there has been a considerable amount of historical work and scholarship indicating that one reason why Louisiana wanted to allow for non-unanimous juries was to eliminate the prospect that if there were Black jurors on the jury, they would vote not to convict a black defendant. And so the state's rationale for allowing non-unanimous juries was to prevent that situation and therefore make it easier to convict

black defendants. And so Justice Kavanaugh asked about whether that was the rationale for the state's rule as it previously existed, and if so, whether that was a sufficient ground to invalidate it on equal protection grounds. Yeah, it's interesting because he said basically, you know, is stare decisis less strong, less powerful in the context of a rule that has racist underpinnings, which is an interesting doctrinally, that's a kind of interesting kind of factor. It also does, though, make me wonder if we're going to keep sticking these new factors into whether stare decisis applies, then it's, you know, kind of

limitless. Yeah, so I think that his suggestion there really gets at two things that have featured in the stare decisis debates. First is any theory of stare decisis presumably has to be able to explain why it's nonetheless permissible to overturn decisions like Korematsu or Plessy versus Ferguson, which upheld separate but equal, or Dred Scott versus Sanford, which held that African-Americans weren't citizens of the United States. And so given that you have to be able to overturn those decisions, there has to be a theory of decisis that explains why that is so. On the other hand, his idea that perhaps decisions with racist underpinnings are entitled to less respect feeds into Justice Thomas's theory of stare decisis, which is stare decisis isn't appropriate for decisions that are demonstrably or egregiously erroneous, because you might think decisions with racist underpinnings fall into that category. Yeah. I feel like this is one of the straight – we've seen criminal cases with Justice Kavanaugh

kind of voting in favor of the criminal defendant and with Justice Gorsuch, but not in the same opinion, I don't think, yet. And I feel like we could get that here between Justice Gorsuch's kind of lack of fidelity to stare decisis and Justice Kavanaugh's concern for race in juries could be interesting. Yeah, that might be right. Tim's is an interesting exception because civil forfeiture isn't technically criminal, but some people kind of view it as adjacent to the criminal process at least. I did want to note one bit about when Justice Kavanaugh brought up this possibility of a reasoning that might lead the court not to adhere to Abedaka is that, of course, the justice who was immediately skeptical about this theory was Woklito, who immediately threw out this hypothetical of, well, if that's the reason for not adhering to ABADACA, would that mean Louisiana's rule requiring non-unanimous juries would be constitutional if Louisiana just reenacted it

for other reasons? Oh, my God. It's like the census case, Leah. Well, not only that, a part of me feels like, yes, Justice Alito, that is how equal protection doctrine works, right? Like policies are unlawful when they are enacted for racially discriminatory reasons, not merely because they have racially discriminatory effects. And if you would like to revisit Washington versus Davis, give me a call. Also, I mean, it's a particularly odd hypothetical here where we know that Louisiana has enacted a new jury requirement, and it does not require non-unanimous verdicts. Yes. So I think it was definitely the case that Louisiana struggled a little bit in this argument in order to offer up a rationale that perhaps five justices found persuasive as to why non-unanimity

might be permissible. Perhaps had the Solicitor General participated in this argument, they could have proffered up some version of, it is necessary to allow Louisiana to use non-unanimous juries in order to enforce the Voting Rights Act, given that they didn't participate. That one wasn't on the table. So let's move on to the next case. Yes. The next case is Promesa. So it's a case that is about the Puerto Rico Oversight Management and Economic Stability Act, PROMESA, which I'm pretty sure was decided on as a name first, and then they filled in what the word should be that fill in PROMESA. So it's called Financial Oversight and Management Board for Puerto Rico versus Aurelius Investment. And what's it about, Leah? So this case is about the constitutionality of the act you just mentioned. And it's an act that was designed to remedy Puerto Rico's serious financial distress. So Puerto Rico was having massive financial problems and Congress set up a board under Promesa to oversee how Puerto Rico would handle bankruptcy. And the

board is comprised of several members, one of whom is selected by the president, and the remainder chosen from a list compiled by members of Congress. And so none of the members of the board went through presidential appointment and Senate confirmation. And so the appointments clause is what requires presidential appointment and Senate confirmation, but only for officers of the United States. Is that right? Yes. So a presidential appointment and Senate confirmation is required for so-called principal officers. Inferior officers, their appointment can be vested in the heads of departments or judicial branch. But if you are an officer of the United States, you either have to go through a presidential

appointment and Senate confirmation or have your appointment vested somewhere else consistent with the appointments clause. Here, I don't think that there's really any question of assuming they are officers of the United States. They would be principal officers. So the question was just basically, are the members of the board federal officers, officers of the United States, or were they appointed pursuant to some other provision? And what other provision might that have been? Yes. So the other possibility is that the officers are essentially territorial officers who are appointed consistent with Congress's powers to regulate the territories under Article 4 of the Constitution. So basically, if they were

principal officers and they're exercising the power of the federal government, then they're probably out of luck because it would have to go through the appointments clause. And we know that they did not go through Senate confirmation. Exactly. But if they were if they are not exercising the power of the federal government, if they're exercising what seems what the party seemed to agree is local power, then they're probably fine because Congress can do that through its Article 4 powers. Yes, exactly. And then there's also a question of, like, let's assume you answer that question as they are exercising federal power and they are federal officers. Then there's a question about what the remedy is and specifically whether Congress can cure the remedy by just running through these officers through the appointments process or whether instead you have to redo every single decision that the officers made once they have been appointed through a valid process.

And we've seen that in the context, I think, of the NLRB where folks were not properly appointed. And then there's a question of are those prior decisions valid or are they nullified? Here, it's a little more complicated because what the board has been doing is basically they're involved in a hundred different adversarial disputes, hundreds of millions of dollars of claims. And it's kind of it kind of feels like the bell that can't be unwrong. And for me, listening or listening to the argument, that was kind of the overarching thing for me. Like, it seemed to me like there's a bunch of justices that kind of feel like, listen, we we can't undo this. So we have to get we kind of start with the end. We know the conclusion. Yeah. It just seems like it would be impossible otherwise.

But it made for very interesting arguments. Okay. So we kind of talked about this kind of local versus federal issue. And so a lot of the argument focused on whether the board's powers were local or whether they were national. And it seems in some ways like that might be a close call, right? Because when Congress is enacting PROMESA, it's doing so because it's concerned about this massive financial crisis that will affect everyone. And lots of the creditors are United States citizens on the mainland. So this affects everyone nationwide.

But on the other hand, the board was vested with this task of just acting in Puerto Rico's best interest, acting on behalf of Puerto Rico in the bankruptcy proceedings and things like that. Yeah, so I think the parties kind of disagree about what the relevant factors are as far as how you determine whether the board was created as a federal office versus a local office. So one of the factors is, as you were alluding to, like the national or federal implications of the things that they do. I think the parties kind of quickly got away from that as a dispositive factor, just because it's always the case that states and localities can do things that have federal implications or national implications. But it doesn't mean that they're not engaging in local rule. So for example, I think one of the hypotheticals that the parties kind of threw around is, well, does the city of Detroit or the state of Michigan start becoming a federal officer

when it is asserting bankruptcy just because it's relying on a federal statute and the decision to do so might have national implications? I don't think anyone really thinks that. And so the mere fact that Congress has given a state or locality something to do that has national implications, you know, isn't going to transform them into a federal officer. But then, you know, it's kind of like, well, what do you consider? And one of the things is, well, what was Congress trying to do? And one of the things they were trying to do is give Puerto Rico the authority to take care of itself. Another factor possibly out there is like, did Congress say, you know, we're invoking our territorial powers under Article 4, and therefore this is more of a local officer? Or

do we consider whether they invoked Article 1, say they were intending or thinking that they were creating a federal officer? So there were a bunch of different factors that I felt like the parties were kind of bandying about. Yeah. And I think there was some concern. It does seem like the what power did you invoke is relevant, but there was also some concern from the justices that, what, do you just have to say these magic words, you know, Article 4, and then everything's fine. And then there was some question about, as you kind of alluded to, the, you know, what was Congress intending to do? Don Verrilli, the former SG who was arguing for the petitioners, basically said, listen, we're not, it doesn't make sense to look

at individual legislators' subjective intentions. That's not how we look at legislation. There was also, I thought that, so Ted Olson argued on behalf of Aurelius Bank and several other entities. And he tried to, I felt like, make this argument about how local the powers have to be that to me seemed a little kind of comically minimalistic. So he said, you know, oh, it has to be – you're talking about speed limits and zoning and like these very, very kind of municipal functions. And I thought to myself, it can't possibly be that. And so I wasn't super convinced. Yeah. You know, I think that the cases are interesting, you know, partly because it seemed like the parties ultimately agreed on what the relevant legal question was, is the board acting in a more local or federal capacity, even though there might have been some disagreement about how exactly you figure out if they're acting in a more local or federal capacity, even though there might have been some disagreement

about how exactly you figure out if they're acting in a local or federal capacity. But one of the interesting arguments to me was kind of like the relevance of historical practice here and also the justices and I think the advocates concerned as well about the implications of the case for other territories and for Puerto Rico as well. And for D.C. they talked about a lot. There was a lot about D.C. Exactly, because D.C. isn't a state. So Congress, you know, provides for the D.C. mayor, you know, and other tools that allow D.C. a measure of self-government. And judges, right? Also D.C. judges?

Yes. So that was one of the cases that the parties were invoking, Palmore, where Congress has created a judicial system in the District of Columbia that includes D.C. courts that enforce D.C. law, but they are not staffed by judges who go through the Article III confirmation process. Instead, Congress has created those courts nominally exercising its authority to regulate territories, i.e. non-states. And those judges don't have life tenure. They're not Article III judges. And so what will happen to D.C. if, for example, Congress has to appoint a mayor through presidential appointment and Senate confirmation or appoint all of the D.C. judges through presidential appointment and Senate confirmation or appoint all of the D.C. judges through presidential appointment and Senate confirmation?

You know, are you going to unwind all of those D.C. adjudications? I know that would really be something. And so Donald Verley had he talked about this territorial judges issue, right? Yes, exactly. OK, so let's play that clip. But I actually think that let's go right to the judge's's point because I think that actually proves our position and not theirs. Because even though territorial judges were always nominated by the president and confirmed by the Senate, this court held, starting in Cantor and then also in Engelbrecht and McAllister, that they weren't judicial officers of the United States, despite the fact that the President nominated them and the Senate confirmed them.

And then to reinforce that, there have been three times in the country's history where a question arose about whether a territorial judge could be impeached by Congress. And in each of those three instances, the political branches concluded that a territorial judge could not be impeached because a territorial judge was not a civil officer of the United States, but only an officer of the territory exercising territorial power. So what was he kind of getting at there? Because he was talking about impeachment, which seems like a slightly different issue than what we were just chatting about. Yeah. remedies are for removing someone who is an officer or an officer of the federal government

or a local officer, because if they are federal officers and a lot of these people are going to be principal officers, then the only possible remedy to get rid of them is impeachment. Whereas if instead they're territorial officers, Congress can provide for things that are more democratic, like elections, and allow the people of D.C. to vote out officers or renew the terms of judges in ways that you might think are more democratic than just doing life tenure with impeachment. So the other thing that was interesting that didn't get as much discussion as I would have expected has to do with the insular cases. So what were the insular cases and why are they relevant? Yeah, so the insular cases are relevant because of this distinction between Article I and federal officers versus Article IV and territorial or local

officers. So the insular cases are this kind of now infamous set of cases that held Congress has more power over the territories under Article 4 and is not limited by various restrictions in the Constitution, like constitutional rights, when it is legislating for the territories. So the rationale of the Insular cases is this kind of infamous, horribly racist reasoning in which the court says, you know, in the course of annexing people of different races, of course, it has to be the case that Congress can legislate more restrictions on them because, you know, they're not entitled to the rights of the Constitution, which are unique to the Anglo-Saxon people. And, you know, the Insular

cases cited Dred Scott, the decision holding that African Americans could never be citizens of the United States. So the origins of these decisions are just this incredibly dark stain on American history that is just like a reality that they're kind of vested with racism and xenophobia. But the irony is, those decisions are what allows Congress to give the territories more authority to govern themselves, because the fact that Congress isn't bound by things like the Appointments Clause are what allows Congress to say Puerto Rico can be governed by a mayor who is elected by the people of Puerto Rico and removed by the people of Puerto Rico. Or, you know, it's what allows Congress to give Puerto Rico all of the legislative authority, because otherwise Congress would be limited by various restrictions on giving away its legislative power, like the non-delegation doctrine. So the, you know, there was all of this,

this long argument, it was an 80 minute argument, which is unusual. There were two advocates on each side. So for the petitioners, there was Don Verrilli and Jeff Wall, both of whom I thought did a really good job. And then for the respondents, there was Ted Olson. And then there was a woman who argued on behalf of, I think it was the Puerto Rican Electric Union. Yeah. Is that right? That's right. I think that's right. Okay. So you have, you know, this 80-minute long argument. There was not a lot of talk about remedy, and which does not bode super well for the

respondents who are challenging the board. You know, and that's where the de facto officer doctrine you mentioned came in. And so basically, as we kind of mentioned before, this is the question of, you know, if this is an unconstitutional board, do we have to wind everything down or redo everything? Or can we just say no harm, no foul, go through confirmation and have it be done? And so do you think that might create a middle ground for the court to rule on? Jeff Wall seemed to suggest that it would still create a middle ground for the court to rule on, Jeff Wall seemed to suggest that it would still create a giant mess, even if you go through the de facto officer doctrine. So that was how Jeff

Wall kind of used the remainder of his argument time is suggesting that this de facto officer doctrine was not a way for the court to avoid chaos in the event that it found that Congress hadn't gone through the constitutionally required appointments process for the ProMesa board members. But the, you know, other kind of oddity about the case is that the Insular decisions, as you were suggesting, didn't really come up in the arguments that much. And in particular, they didn't come up in the arguments of the advocates who are more repeat players before the Supreme Court, like Don Verrilli or Ted Olson or Jeff Wall. the arguments of the advocates who are more repeat players before the Supreme Court, like Don Verrilli or Ted Olson or Jeff Wall.

And I feel like the differences between those advocates' experiences at the podium and the lawyer representing the Puerto Rico Electric Utility Employees Union might be illustrative of something about Supreme Court culture. And so maybe we should play an excerpt from Ted Olson's argument to give the listeners idea about how Supreme Court arguments with Supreme Court repeat players sometimes go. Yes, we'll have a nice juxtaposition here for you. So here's Ted Olson and the chief. Well, that is part of the theory. And as the United States repeatedly said with respect to in the free tag case, the deputy solicitor general was asked a question about what if the governor of Puerto Rico was appointed by Congress or a federal official.

And the response from the federal government was that would invoke, in every case, the appointments clause. Did that deputy solicitor general prevail on that position? That deputy solicitor general made a beautiful argument. And fortunately for him, the court did not decide that precise case. But that argument— So why is everyone laughing? Yeah, so everyone's laughing because the deputy solicitor general who made that argument in was Freytag in the Freytag case. Yeah, the deputy solicitor

general who made that argument in Freytag was Chief Justice Roberts. And, you know, Ted Olson might know that because like he's also part of Solicitor General's office and he knows this was the chief's argument. But it's this really kind of clubbiness about, you know, these same people have been arguing these same cases for the last several decades. Yeah. And I will say that, you know, in that clip, Ted Olson didn't just say, you know, in the Freytag case, the government was asked. He specifically said the deputy solicitor general. He knew exactly what he was doing. Yeah. So it got a nice laugh, but it was a little clubby and a little odd. In contrast, when the lawyer arguing on behalf of the unionized employees of the Puerto Rico's electric utility argued, she talked entirely about the Insular cases and was basically

asking the chief to please overturn them. And the chief basically kept saying, listen, why do I have to do that? The board and the Office of the Solicitor General aren't even relying on the cases. They don't seem that important. And so here is how she answered the chief's question. Well, as I mentioned, and also in last term, this court went ahead and overruled the Korematsu case and the Trump versus Hawaii case. The court said that the case had nothing to do with the Trump versus Hawaii case, but still it was a morally repugnant doctrine that was purely on the basis, considering the basis of race, and therefore it was overruled. The same here with the insular cases. And I cannot stress enough that the parties have relied on the insular cases in this case. That is why it's the perfect opportunity to address them. die for. I mean, this is usually something that you would think only someone who is a repeat player would kind of do in pointing out another instance in which the Supreme Court had nominally defied established practice of only overruling decisions where explicitly necessary to do so.

And here she's pointing out, oh, actually, you've done that before. And second, like, a little moment of real talk about why the insular cases need to go. Yes. I thought it was just a lovely dig. But you do remember, though, that in Trump versus Hawaii, Korematsu was only overturned in the court of public opinion. Right. Exactly. note that Korematsu, I looked this up recently, and Korematsu had been cited in an opinion by Justice Thomas within the last five to six years. So it's not like it was really an old relic, but what do I know? Yeah. Okay, so the last thing on court culture that I wanted to mention was

there was this super weird exchange between Justice Alito and Ted Olson. So Ted Olson is, you know, basically representing some of the creditors, I think, the companies who are challenging the board. And so Justice Alito asked Ted Olson, you know, are you and your client just here because you care about the integrity of the Constitution? Or would one be excessively cynical to think that something else is going on here involving money? And Ted Olson basically explained, you know, my clients are going through bankruptcy. Of course, there's a lot of money at stake. I'm not, you know, he's not just an amicus. That's, you know, it was, and then Justice Alito kept pressing. And so I want to play this clip to what he said next. I'd just like to know what, this is a real case. I'd like to know what's really going on here. Well, there's, there's over $100 billion of

indebtedness being adjudicated in various procedures, a lot of which... Right, and your client wants more of it, and somebody else, you think, is getting too much. So what is it exactly, if you want to answer? We can't possibly answer that. There are these extraordinarily large claims which the agencies of Puerto Rico have defaulted on, have not been able to pay these claims. So yes, you're right. Of course, it involves a lot of money. I have no idea what Justice Alito was getting at here. And I don't know if you do, Leah.

It's super weird because, you know, the thing is, is parties can't come into court challenging federal laws merely because they think they're unconstitutional. Like, that's not a legally cognizable injury. We say they haven't been injured if you really want to enforce the Constitution. Ted Olson is not cheap. I mean, five years ago, I think there were articles saying

that he was billing out at $1,800 per hour. So it's just, and I just don't understand or why Justice Alito would have cared it was just very odd so yeah odd court culture issues I agree definitely alright so should we move on to the next case or was there anything else you wanted to share about yes

only because the next case is the best case ever until we get to Arisa next month I was just about to say I feel like this episode and the summer episode we did on Armed Career Criminal Act is really just me building up goodwill

and you waiting to hold this over my head when you demand the four extra episodes on ERISA. Yes, that's right. Okay, so what's this next case? So it's Mathena versus Malvo, and the question here involves juvenile resentencing, and specifically whether a state's mechanism for sentencing and or resentencing juveniles complies with the Supreme Court's previous decisions regarding juvenile sentencing and life without parole sentences. So I think you alluded to this, you know, the previous precedents. And I think we should go through them briefly because I think otherwise this won't make a ton of sense. So you've got this first case.

And actually, first, let me mention the facts of this case, which are really interesting. It's a case about one of the D.C. snipers. So in 2002, two men kind of went on a rampage and were randomly shooting people in D.C. Everyone was kind of scared for their lives. People weren't going to the gas stations. And so there was an adult and then there was a 17-year-old boy who was also involved. And this involves the then 17-year-old who shot and killed people. And he was sentenced to life in prison without the possibility of parole.

So you've got this case, Miller v. Alabama. So Miller held that mandatory sentences of life without parole are unconstitutional. And they used this kind of reasoning that said, you know, because youth is a consideration that must be considered during the sentencing phase. You have to consider whether this child is permanently incorrigible or whether they can change. And then a few years later, there was a case in Montgomery versus Louisiana that held that Miller applies retroactively. And so what the petition says, if I have this right, is that Miller was only about mandatory sentences and it doesn't apply outside of a scheme that is expressly mandatory LWAP.

Judge can't even mention or can't at all consider youth. And what the petition claims is that the Fourth Circuit wrongly interpreted Montgomery, so the second case, to have expanded Miller to apply to non-mandatory life without parole cases in which the judge could have considered youth but just didn't do so. Is that right? Yes, that's right. And I think it might be worth saying a word more on retroactivity because that's going to be relevant to some of the reasoning here. So when you say Montgomery

interpreted Miller to apply retroactively, there's this general rule in criminal procedure that new decisions of criminal procedure do not apply retroactively, i.e. they don't apply to cases that have already become final, cases where the trial and appeals and review in the Supreme Court have already finished. And the reason they don't is to protect the kind of reliance interest we were discussing earlier, where you don't want a new decision of criminal procedure to unwind too many criminal convictions or sentences. But there are two exceptions where new rules do occasionally apply retroactively. And one of them is for so-called substantive rules. And Montgomery held that Miller announced a new substantive rule,

which therefore applied retroactively. And so part of parsing what Miller means is you have to come up with a reading of Miller such that the decision announced a substantive rule, because that's the only way Montgomery could have applied it retroactively. Because otherwise, if you just interpret Miller to be about a process or certain procedures, well, that decision wouldn't apply retroactively. And so that can't make sense of Montgomery. And so that is also going to inform some of the arguments in this case. Right. And another weird thing about this case beyond the kind of procedural posture is that there seems to be uncertainty about what Virginia sentencing actually required. So it's not clear whether Virginia sentencing scheme was mandatory. At the time that Malvo

was sentenced, the only options were death or life without parole. And juveniles, we knew, can't get death. And there's no record of any judge ever reducing any life without parole sentence to a term of years in Virginia ever. It also, it seems clear that the judge didn't consider his youth. And at the time, of course, he was sentenced, the judge wouldn't have known that they were supposed to. So it's just, it's, you know, very complicated. And it didn't seem like anyone really had a firm grasp on really the facts of Virginia's scheme at the time he was sentenced. Yeah, absolutely. So I think we'll probably get into that in a little bit, because I think the lawyer representing Malvo, Danielle Spinelli of WilmerHale, did a really wonderful job of

incorporating those aspects of Virginia's sentencing and specifically the timing of the sentencing of Malvo into her explanation about why that specific sentencing procedure couldn't have complied with Miller. So maybe it makes sense to kind of start out with the disputes between the parties about what Miller versus Alabama plus Montgomery versus Louisiana actually mean. And the dispute is, again, against the backdrop of Miller has to have announced a substantive rule, else it can't have been applied retroactively. So Justice Kagan came out right at the beginning with a pretty strong view about what Miller means. So let's play that clip.

I mean, I guess what you're saying is that it would take another case to make that clear. But I think Miller itself makes that clear. If there's anything that Miller says, I mean, all of Miller, it's a 30-page opinion, and it can be summarized in two words, which is that youth matters and that you have to consider youth in making these sorts of sentencing determinations. And again, of course, it talks a lot about mandatory schemes because a mandatory scheme was in front of it. But the entire reasoning was about how much youth matters and how a judge or a jury, whoever the sentencer is, has to take that youth into account. That's the lesson of Miller. So basically, the way I interpret it, Justice Kagan thinks that

Montgomery is relevant because it gives a really good idea about what the court thought it was doing in Miller, you know, what Miller meant. So Montgomery demonstrates what Miller meant. And I think it's really, really important to keep in mind when looking at what Justice Kagan said is that she wrote Miller. So she probably has a pretty good idea about what Miller meant. Exactly. And Justice Kennedy wrote Montgomery, but he joined the majority in Miller. So those two together, pretty firm grasp on what the case meant. On the other hand, an opinion is what it says.

And one particular justice's view on what they meant personally when writing those words isn't necessarily dispositive and may not even be relevant. Yes, that's true. I feel like this issue has come up previously. I think it might have been a few terms ago in Klockner versus Solis, where there was a question about what one of Justice Kagan's opinions previously meant. And she was, again, a very active participant at arguments saying, no, right, this is what my opinion meant. And the court ended up kind of adopting, you know, her explanation about what the opinion meant. But, you know, she's also a super clear writer. And so I think, right, like her reading of the opinion is fair, not only as the author,

but also because like the opinion itself is clear, perhaps relative to Montgomery. Right. Okay, so Justice Kavanaugh focused a little bit on what kind of different sentencing regimes might satisfy Miller or Montgomery because there's not just this binary on or off switch on whether a sentence is mandatory. Right. So let's play that clip. Let me ask it this way. Do you think a discretionary sentencing regime is enough to satisfy the substantive Miller Montgomery rule, as I posit it, that you can't impose life without parole on someone who's merely immature as opposed to incorrigible? So his question is really getting at this issue of would a state system comply with Miller Montgomery if the state was permitted to consider youth rather than forbidden from considering it? And then there's this kind of secondary question about what it means to consider youth if you think that Miller or Montgomery requires not just permitting the state to consider it,

but requiring them to consider it. And if you have a state system that is being applied after Miller or Montgomery that doesn't prohibit the consideration of youth, and Miller or Montgomery seem to say you got to consider youth, is it safe to presume in every single case that judges are considering youth in arriving at their sentences? Right. And the standard that he talked about, you know, immature versus incorrigible, I think that goes to something that was said. I'm not sure if it was in Miller or Montgomery, but basically the majority opinion said this should be rare. We think that juvenile sentences of life without parole should be rare, which suggests to me that it doesn't just, you know, maybe allow you to consider it.

You have to consider it, you have to consider it. And not only do you have to consider it, but you can only impose that sentence where you conclude, where you find that this particular individual is forever hopeless, basically. Yeah. So Miller had initially suggested that these juvenile life without parole sentences should be rare. And then I think Montgomery had kind of further clarified that perhaps those juveniles whose crimes reflected like the transient immaturity couldn't be sentenced to life without parole. But we also know that Miller and Montgomery did not specifically require states to make a determination, i.e. like an on-the-record determination before imposing life without

parole that a juvenile is incorrigible. But part of the problem with reading Miller and Montgomery to just require consideration of youth is that you have these other cases in the death penalty context, which said some decisions that just require state courts or censors to consider additional factors, like the fact that a defendant will be sentenced to life imprisonment even if he doesn't get the death sentence, those don't apply retroactively because they're just kind of affecting the process of decision making. And so it's got to be that Miller requires a little bit more, but short of making an actual determination. So when you're arguing before the Supreme Court, it is sometimes difficult

because the justices don't focus on the facts of a case. They focus on these big principles. And some of the best advocates are able to fold in the facts to bolster their analytical framework and their kind of big picture arguments. And that's something that Danielle Spinelli did a fantastic job of. And let's play the clip of how she responded to Justice Kavanaugh's kind of concern about what's required. Malvo was sentenced in 2004. That was not only before Miller, it was before Roper. The prosecutor sought a death sentence for him. The issue before the jury was, should he be sentenced to death or life without parole? That was the only issue they were allowed to decide.

At the sentencing hearing before the judge, which is extremely short, it's eight pages at the end of the joint appendix, there was no consideration at all of imposing a sentence less than life without parole. I think that's kind of going to the, you know, there might be cases that are close calls. This is not one of them. Right, exactly. Like, let's assume purely discretionary systems in which states are permitted to consider youth, in which states know they have to consider youth, might satisfy Miller or Montgomery. That's certainly not this case. It was decided not only before Miller or Montgomery, but also before the court outlawed the death penalty for juveniles.

So there isn't even this youth is different principle established in the death penalty context. Virginia is arguing that, oh, well, judges can reduce sentences of life without parole to term of year sentences. There's no evidence that Virginia ever did that. The sentencing is super short. There's no evidence that youth was factoring in at all or the possibility of something, a term of years or even life without parole. So it's just, I just thought she did a really wonderful job of that. And part of the other frustration that I see in a lot of criminal cases is, you know, criminal cases seem easier for the justices, right? Like you can, they're intuitive, there's a huge body of case law. On the other hand, they stay at this very high level of analysis

with, and they try to stay very theoretical. there's a lot that the justices don't know about how this operates on the ground. And I think that's something that you noticed about what Justice Kavanaugh had said about the sentencing process. Yeah. So Justice Kavanaugh asked questions about, again, how specific variations of discretionary systems work. And so he used the federal sentencing system analog to pose this hypothetical. In most sentencing system analog to pose this hypothetical. In most sentencing regimes, as you well know, throughout the country in a variety of sentencing courts, judges are required to consider all sorts of factors by state law. And arguments are raised

to the state court judge, the trial judge, about all sorts of factors. The judge will often impose sentence without marching through a checklist of all those factors, yet it is routinely accepted that the judge has, quote, considered the factor if it has been raised or even if it's required as a matter of state law. There are lots of state cases and federal cases that say so long as the issue has been raised, we assume the judge, quote, considered it. And so what he's drawing on is in the federal system, this federal statute spells out, here's a list of factors courts must consider before imposing sentence. And we don't require judges to say, here's my consideration of this factor.

Here's my consideration of this factor. And therefore, I arrive at the ultimate sentence. Instead, we presume that judges do consider those factors, you know, absent some like super strong evidence to the contrary. And he's, I think, arguing by analogy that maybe that's how the post-Miller-Montgomery sentencing regime should work as well. Right. And Justice Sotomayor echoed this as well. And I think she's the only one on the court who has actually done any sentencing because she was a district judge before she became a Supreme Court justice. And so she talked about the Section 3553 factors.

To me, though, this seems different. You know, the statutory 3553 factors that you consider in every case, that seems different than ignoring the one controlling factor that the Supreme Court says you have to take into account because you have a child in front of you. And also note, you know, when I clerked for my district judge, it's not that hard to actually go through the factors, right? Many district judges do it all the time. And requiring them to do it doesn't actually impose a giant burden. So I'm a little skeptical, though, on the other hand, you have a lot of state court systems that have, you know, varying practices. So. So yeah, so it seems, you know, you've these kind of

assumptions about the way things operate, that might not always be true. Yeah. Another place I noticed in a similar context, kind of the justice is not really knowing how things work in real life necessarily. It's about Miller. So Miller was premised in part. It applied only to life without parole. And part of the reason for that was there was this assumption, and it's gone back decades, that parole is an adequate Eighth Amendment safeguard for mandatory life sentencing schemes. And I think the justices have kind of felt, you know, it's fine. Parole works pretty well. If you don't get into too much trouble, you'll get out of prison in 15 years.

And that might have been true a couple decades ago. But now parole is a complete mess. Sharon Dolovich has written on this. But basically, as of the early part of the 21st century, parole pretty much stopped being a meaningful process for people to be released. In many states, it's really an arm of the prosecutor's office. There's a lot of former prosecutors on it, not a lot of child psychologists. And just as one example, Maryland, even as of a couple of years ago, and I think it's still the case, Maryland had not let someone who had been convicted as a child out on parole for more than two decades, even though supposedly they have this parole system. And so the disconnect between the justices' assumptions

about the criminal justice system and how it actually operates in practice is really frustrating. Yeah. And that's also definitely true in the kind of post-Montgomery litigation as well, where a lot of states ostensibly remedied this by saying, oh, yeah, we make all the individual sentences juveniles eligible for parole. But then states like Louisiana just aren't granting anyone parole. So even Henry Montgomery, who's the named petitioner in Montgomery versus Louisiana, has gone before the parole board several times, and he is still in prison. And sometimes when those parole boards deny parole, they say things like, well, your crime was just so bad, which is going to be the case, you know, anytime someone has gotten

a life sentence. And I'm not saying that people should always be let out on parole, but it has to be a meaningful process. And basing an entire doctrine on an assumption that this is a well-functioning system is problematic. Yeah, exactly. And particularly where you mentioned their determination seemed to focus on the severity of the crime and then don't mention anything about youth, right? That might arguably raise the inference that they are not focusing on the factor that the Supreme Court has directed them to. Yeah. So how are you thinking

this is going to come out? I know we don't always do predictions, but I'm curious about your thoughts on this because it's hard. So it's hard. And then there's a meta level of difficulty for me, which is this case makes me wonder whether we are in the good place or the bad place, not only with respect to whether states are going to be required to come up with sentencing systems that meaningfully ensure consideration of youth, but also because it forces me to live in a world in which I am existing and considering the votes of Justice Kavanaugh and the Chief Justice as the, you know, swing voters in these criminal cases. It's interesting because, you know, we've talked a lot about how Justice Gorsuch has these more libertarian instincts compared to Justice Kavanaugh,

and that led him to vote for criminal defendants, oftentimes with the progressive justices last term, whereas Justice Kavanaugh sided with his more conservative colleagues in favor of the state or the federal government. That doesn't appear to be the case here. Instead, if the criminal defendant prevails, it will be because there's a fifth or sixth vote from Justice Kavanaugh or the chief, at least based on how the argument went. And presumably, like, that's because the competing consideration here is not some general notion of libertarianism, but instead is stare decisis. And specifically, like, are you going to read Miller and Montgomery for what they said, right? And against this backdrop of it has to have announced a substantive rule. And perhaps those institutional interests

here are more important to the Chief Justice and Justice Kavanaugh than for Justice Gorsuch. So two kind of points on that is, so Miller, do you know one of the justices who was in the dissent in Miller? I do, because I happen to have clerked that term. It was the Chief Justice who authored the dissent. He authored the primary dissenting opinion. So that's something to consider. I also consider the fact that the Chief and Justice Kagan, by all accounts, have an excellent relationship. He gives her a lot of big opinion. He assigns a lot of big opinions to her. He seems to have an enormous amount of respect for her. So I do wonder if, and he also, you know, respects stare decisis-ish. Ish. Except for when it's for suckers or schmucks. Yes. But, you Yes. But more. He doesn't come out in every oral

argument saying, yeah, yeah, yeah. I know that there's a controlling opinion, but what if we were starting from scratch? Right. Exactly. Justice Gorsuch does. So I think considering those two factors, I do wonder if this might be a case where we get the chief. On the other hand, have we ever seen the chief join the more liberal wing in a criminal case ever? Yeah. So Graham, another juvenile sentencing case. So there he was the sixth vote where Justice Kennedy joined the more progressive justices to say, like I say, juvenile life without parole is never permissible in any context where the juvenile isn't convicted of homicide. And the chief justice issued this super fascinating separate writing in which he said,

I would invalidate this sentence on narrow proportionality grounds, which the Supreme Court never does. Like they never say a particular sentence is disproportionate to the offense and the offender. And then also he joined with the progressive justices in Carpenter to say that the search there violated the Fourth Amendment against these pretty angry dissents from Justice Alito and Justice Kennedy. in Carpenter to say that the search, you know, there violated the Fourth Amendment, you know, against these pretty angry dissents from Justice Alito and Justice Kennedy. Yeah. He does do that. And I'm not sure why he doesn't get as much credit for having those like libertarian instincts as perhaps someone who's maybe a little bit more ostentatious about it, like Justice Gorsuch

does. But, you know, he also seems to have some of those intuitions as well, where like, he's also pretty skeptical of like, excessive prosecutorial power and like criminal laws overreach. Yeah, I will say that this, this opinion is one where I feel like Justice Kennedy's retirement is going to be felt enormously. He, you know, Justice Kennedy, aside from some of the kind of marriage equality issues, he almost single handhandedly spearheaded this kind of effort to be more protective of the rights of juvenile criminal defendants, starting with the Roper v. Simmons case,

which held that juveniles couldn't be given the death penalty, then on to Graham, which said they can't be given life sentences for non-homicide offenses, and then to Miller and then to Montgomery. He authored almost all of those. And so if this does not go the way of the respondent, it will, I feel like, be hugely because of his retirement. Yeah, I think that that's right. And then I also just wanted to note earlier, as I was suggesting, this case makes me wonder whether we're in the good place or bad place. It's partially because I feel like it is exemplifying something to me that embodies the patriarchy. Namely, we are sitting here in this world in which Justice Kavanaugh has been appointed

to the Supreme Court, and we are pursing what he said in oral argument, right, and his nominal respect for precedent compared to his colleagues and asking like what we think he is about to do and whatnot. And, you know, we mentioned this at the very beginning of the term preview when we were noting the recent books that have come out kind of documenting additional material related to his confirmation hearing and the allegations of sexual misconduct against him. And like, again, I don't know how to exist in this world in which he is on the court. He is deciding these important issues. And it is important to think about how he is voting and the considerations motivating him without also acknowledging these very serious allegations against him and that that is going to

inform, right, like of some number of people's experience with the court and understandings of him. So it's just, again, like, I just find myself very torn in these discussions. Yeah. And I will say, you know, during the last discussion, I didn't participate in it in part because of what you talk about, which is, you know, that time, the confirmation hearings, that was a really dark month. And that was really difficult for me to just kind of live through then. And I think that anytime we talk about stare decisis and what Justice Kavanaugh thinks about it, then I remember the confirmation hearings where he talked about precedent on precedent. And then I think about the rest of the confirmation hearings. And then

I just think to myself, I can't emotionally live through that again. I just can't do it. And I can't. So yeah, I think it is difficult. And yet we will keep chugging along and working hard and doing it. So speaking of the patriarchy, Jamie, maybe it's time to discuss the cert grants. All right. So there were no cert grants except for one, immigration one. And that's all we have to talk about. And that's it, right? Right.

That's the world that we want to live in. Unfortunately, that's not the world we do live in. OK. And we keep talking about this when Melissa's not the world we do live in. Okay. And we keep talking about this when Melissa's not here and she's going to get very upset. Well, she can certainly discuss it whenever and whenever she would like and hopefully on the show sometime soon. Okay. So we should stop beating around the bush. What was granted and what does it mean?

It's June Medical Services, the case concerning the Louisiana admitting privileges requirement on abortion providers. That is the same law Texas enacted and the Supreme Court struck down three terms ago. So the Supreme Court granted cert in the clinics petition to decide whether the Fifth Circuit was correct to uphold the law that, again, the Supreme Court had validated a few years ago. But even more troublingly, the Supreme Court granted the state's cross petition. And a cross petition is essentially a request where the party who prevailed below says, if you grant the opposing side's petition, also grant my petition for an alternative ground to possibly rule for me. And here the state is offering up as an alternative ground the possibility that the Supreme Court should say that abortion providers, clinics and doctors cannot sue to challenge regulations that they themselves are subject to by asserting that the rules interfere with women's ability to decide to end a pregnancy. So they're asking the Supreme Court to revisit an element of federal court's law

of third-party standing in the context of abortion providers. And just to be clear, that issue has the potential to be far more significant in a practical sense than the actual law that we're talking about whether it's valid or not. Yeah. Because it is – let's just say it is probably difficult to get a pregnant woman to actually be a plaintiff in one of these cases. Right. Exactly.

So if abortion providers, that is clinics and doctors, can't be the plaintiffs challenging them major lawsuits because they risk having their identities revealed. And the entire notion of this being a constitutional right that she has not been able to get an abortion that she wanted, which means she then has a baby. Maybe she gives the baby up for adoption. Maybe she doesn't. But if she doesn't, and she now has a child, and she's raising the child and doing her best, and maybe you don't want to then file a lawsuit or keep a lawsuit going talking about how you didn't want the child that you're caring for. And it's just incredibly complicated, even outside of the question of whether, you know, mootness applies or, you know, I think that it's pretty clear that there wouldn't be mootness that would apply in this context. But even aside from all of those procedural hiccups, it's just really,

really difficult. Yeah. So you're saying states aren't litigating these cases in the best interest of women, Jamie? That could not be possible. Everyone does their level best to do what is, you know, act in good faith. Everyone does the right thing. Big if true. So the other criminal case I did want to just mention is United States versus Sinank Smith. And the issue in that case is a follow on to basically my favorite trilogy of cases ever, whether a specific federal criminal prohibition against encouraging or inducing unlawful immigration is unconstitutional on its face. So it will be interesting to see whether the Supreme Court continues its recent trend and finding, you know, a series of federal criminal prohibitions unconstitutional. This one seems different than a lot of the crimeigration cases we see, which usually

focus on the immigrant who has moved here. And I do wonder if this one might be different because it's talking about folks who have encouraged someone to move here illegally for commercial advantage or private financial gain. Yeah. So here, the arguments are probably going to sound more in like economic liberty in addition to the vagueness grounds, which we've seen thus far. And that, you know, that type of law could implicate, you know, giant, you know, people who own giant farms, or it could implicate someone who has a

child care worker come, you know, from another country from that wouldn't otherwise be able to get status here. Right. So it seems broadly potentially significant. So that's about all we have time for this episode. Thanks, everyone, for listening. Thanks to our producer, Melody Rowell, who is off honeymooning now having been happily married. Congratulations, Melody. Congrats, Melody. Yay.

Thank you to Eddie Cooper for putting together our music. And, you know, I feel like we should leave our listeners with a big thought just to chew on until the next episode. What do you think? Let's do it. Okay. So we are going to leave you with this thought slash question from the justice who loves to ask those thought slash questions, Justice Breyer. But he wasn't phrased as that. I mean, it's quite deep, this question. It's like ethics of Aristotle. The wind blew my hand. You don't hold them. Well, I'll save my death for later. I'm not sure I want to.