Strict Scrutiny - Rinse & Repeat

Episode Date: January 20, 2021

Leah, Melissa, and Kate are joined by Rutgers Law Dean Kim Mutcherson, host of “The Power of Attorney” podcast, to break down (FOR NOW) the Court’s recent grants, the decision in FDA v. ACOG, an...d to recap and preview some January cases. Follow us on Instagram, Twitter, Threads, and Bluesky

Transcript
Discussion (0)
Starting point is 00:00:00 First, let me just ask, do we know why it's such a light week in terms of cases? I think court just like really trying to stay under the radar. Is that it? They don't like conversations about court reform or court packing. And so they're like, well, let's just not decide much and no one will notice that we're here. 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 asked no favor for my sex all I ask of our brethren is that they take their feet next. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. Today, we are delighted to be doing a live, via Zoom of course, show at Rutgers Law School. And that means that this is also a crossover episode with the Rutgers Law podcast, The
Starting point is 00:01:12 Power of Attorney. And we are joined by none other than the Dean of Rutgers Camden Law School and the host of Power of Attorney, Kim Mutcherson. Welcome, Kim. Thank you so much. It is such a thrill to be here with all of you. And we are super excited to be doing this episode with you, particularly since we have the Supreme Court's order slash non-decision in FDA versus ACOG to discuss this week. So just a brief rundown
Starting point is 00:01:38 of the show. First, we're going to discuss some court news and court adjacent news. There is a lot of it. We will also do a preview of one of the cases to be argued this week and a recap of one of the cases that was argued this past week. And then we will close with some discussions about impeachment and insurrection, which are unfortunately still topical. Okay, so for the breaking news, the Supreme Court granted a bunch of new cases, exactly 14 of them, although a number of them will be consolidated together. These were not necessarily grants in high profile cases, but there were nonetheless some very important cases, including one that we've talked about before on the podcast. So Kate, do you want to tell us about the first one? Definitely. So the first grant we wanted to highlight is part of a Koch brothers backed effort. Specifically here, it's a challenge to a California state disclosure requirement of nonprofit donor lists.
Starting point is 00:02:33 Senator Sheldon Whitehouse, for those of you who had a chance to listen to our special episode with him, flagged the set of issues as important to watch when he was on our December show. And as he warned, these cases threatened to undo a bunch of disclosure and transparency requirements, which would make it much easier for dark money interests to do their shadowy work. To paraphrase Senator Whitehouse from that episode, the court that dark money built will now find a constitutional right to dark or undisclosed money. So these cases are Americans for Prosperity Foundation versus Becerra and the Thomas More Law Center versus Becerra. And they concern specifically the California Attorney General's Office's requirement that charities disclose the names and addresses of major donors. As amicus, the federal government supported cert in this case.
Starting point is 00:03:12 So just a quick recap of something we talked about with Senator Whitehouse. In Citizens United, eight justices actually said that generally speaking, campaign finance disclosure requirements are perfectly constitutional. This case is about disclosures of donors to charities rather than political campaigns, but the line between the two is fuzzier now than ever. And whatever the court says here about the permissibility of this kind of disclosure requirement is sure to reverberate in the context of political money. So this is a very big and important grant. One thing that I couldn't help but note was just the asymmetry of amicus filings at the cert stage in this case. So as we said, the United States supported the cert petition, but there were like 20 amicus briefs in support of cert. California was all alone on the other side in defense of
Starting point is 00:03:54 its disclosure requirements. So, you know, amicus brief writers get on this now that the case has been granted. It is hugely important. And right now it looks like there's just one side of the argument that is really speaking, you know, kind of at full volume to the justices. I'd like to hope part of that is just because amicus briefs against certiorari are kind of rare, and in some ways can detract from your cause. But definitely amicus brief writers, please jump into this case. I also wanted to note that this particular case and this particular issue about transparency and disclosure requirements is particularly topical now, given what is going on. It's been reported that the 501c4 arm of the Republican Attorneys General Association, the Rule of Law Defense Fund, helped organize the protests that preceded the deadly January 6th attack on the Capitol. And Raga appeared in a list of groups participating in the, quote, March to Save America. And we know
Starting point is 00:04:52 some of the significant funding sources to Raga because of transparency and disclosure requirements. And those include Koch Industries, the Judicial Crisis Network, and the NRA. So it's this kind of knowledge that is potentially at stake in this case. Another case that was granted is Mahonoi Area School District versus BL. And this is kind of my favorite grant so far because it is a case about one ninth grade cheerleader's incredibly bad day. I was a former high school cheerleader, so I can relate to this. Did we know this? Can we see your spirit fingers? Only the people at Rutgers will be able to see this. Our listeners won't.
Starting point is 00:05:31 But come on, Melissa, show us your spirit fingers. You won't tell anybody. We should say also a teenage Jeopardy star, right? So like that, we have to sort of fold that into the story of the teenage cheerleading. But go on, Melissa. We need to hear more. The two are not unrelated because I was forced to quit the cheerleading squad for lack of commitment because I went to do an Odyssey of the Mind tournament. So that ended my career as a
Starting point is 00:05:54 high school cheerleader. But in any event, this particular high school cheerleader, BL, was having a very bad day because she tried out and did not make the varsity cheer squad. And she expressed her frustration on social media, sending to 250 of her closest friends a message that included an image of her and another friend with their middle fingers raised along with a text expressing a similar sentiment. She said that she wanted to F school, F softball, F cheer, F everything. And when she was dismissed from the cheerleading squad, the Third Circuit said that the dismissal violated her First Amendment rights. And who hasn't wanted to just say F everything at some point?
Starting point is 00:06:34 So I feel her. And I'm going to be watching that case. As all current and former cheerleaders and First Amendment aficionados will be. There were also a number of additional significant grants. There's a case about eligibility for resentencing under the First Step Act. Terry, there's a case about Alaska Native corporations eligibility for federal COVID relief. There's a case about whether TPS, temporary protected status recipients, are eligible for LPR, lawful permanent resident status. There
Starting point is 00:07:05 is a CERCLA cleanup case involving Guam and a case about the Enquirer Criminal Act sentencing and error review. This is your cheerleading. Exactly, exactly. I am the ACA cheer squad. And this particular set of issues is about the scope of review for plain error for so-called rehafe errors. So as we said, there were 14 grants. That would mean there are 28 attorneys in these cases, you know, one for the petitioner, one for the respondent. But it's actually 33 since some of the cases had multiple parties. So let's play a fun little game called Guess How Many Women Were Counsel of Record in These Cases? So 14 attorneys had their cases granted. How many women were among the counsels of record? Surely seven, right? Yeah, right. Gender parity. We have achieved parity. No, that would be two. Two women out of the 14
Starting point is 00:08:07 councils of record that were granted. Okay, so let's play a similar game for the councils of record who were respondents. So here there were actually 19 attorneys had their cases granted when they argued against certiorari. How many women do we think are here i'm gonna go with at least nine wow i was gonna go with three i'm being super facetious um kim is closer still too high again two um technically maybe you could say there were four since two of the women actually were respondent in two of the cases. But those were also consolidated cases. So I don't think it like really counts.
Starting point is 00:08:52 But, you know, if you really want to feel great about gender parity at the Supreme Court, a fun thing to keep in mind is that there were actually more men named Jeff who had their cases denied than women who had their cases granted. Welcome to 2021, ladies at the Supreme Court. Paul's out, Jeff's in. Feel the change in the air, right? There we go. So when there are nine could go for many different uses at the court. Anyway, the court also released the hearing list for the January sitting after we recorded our last episode. And it's a light sitting with only 13 advocates appearing.
Starting point is 00:09:33 How many women do you think appeared in that batch, Leah? When there are nine, nine, right? No. Oh, Leah, you rosy-cheeked optimist. Only three women, but that is actually better than they have done before. So, you know, baby steps for SCOTUS. Good job. How many women do you think are arguing from the Solicitor General's office? Given how committed to gender equity this administration has been, Ben, you know, I don't know, three, four. C-E-G, FDA versus ACOG. There were zero women arguing from the Solicitor General's office,
Starting point is 00:10:11 which also means that there are zero women of color arguing from the Solicitor General's office, but also just generally there are no women of color in the sitting. And how many lawyers of color do you think are appearing in that sitting? I'm not going to answer because it just hurt my feelings. So we think it's probably about three. Is that fair to say? So again, progress is slow, but we can definitely do better than this, right? Yes. Okay. So hope springs eternal. Law students who are listening and, you know, this is a call to our women law students that this is what you should be angling for because there's lots of space for women here.
Starting point is 00:10:53 Lots of room for growth. Absolutely. Growth industry. We want the court to have a growth mindset. Yeah. Spoken like a woman who has kids in elementary school. So we've already alluded to this case once, but we did want to cover the court's decision on Tuesday evening in FDA versus American College of Obstetricians and Gynecologists. In that case, the court stayed a lower court opinion that had enjoined the in-person requirement to obtain one of the abortion pills over dissents by the three liberals. So the Food and Drug Administration requires women
Starting point is 00:11:32 obtaining the pills that is used in the medication abortion to obtain the drug in person at a medical facility, a hospital clinic or office, and to sign a disclosure form when they do so. This is a different protocol than for the 20,000 or so FDA-approved drugs that can be picked up over the counter or that you can order to be filled for pickup. In light of the coronavirus, the FDA had actually waived the in-person requirements on other drugs, including some controlled substances like opioids. But to no one's surprise, the Trump administration decided to keep the in-person requirement on the abortion pill so women seeking medication abortions have to go to a medical facility during the coronavirus pandemic. A Maryland district court enjoined this requirement,
Starting point is 00:12:21 finding that it unconstitutionally burdened women's access to medication abortion during the pandemic. So for example, the side effects of the pill were similar to the risks of over-the-counter drugs like aspirin, for example. And he also noted that you can only have a medication abortion during the first 10 weeks of pregnancy. So again, this was a very contained period. And Justice Sotomayor, in the opinion she dissented, highlighted that the mortality rates from COVID are much higher for African American and Latino individuals. And these individuals are also more likely to live in intergenerational housing, thus posing the risk of infecting elderly grandparents or parents or
Starting point is 00:13:03 other family members if they do leave the house in order to seek this care. And some places have also stopped offering services or have reduced availability during the pandemic. So this has compromised what is already a limited access situation for getting these kinds of drugs and services. Yeah. So brief procedural history, and then let's talk substance. So the district court issued the injunction in July. The government initially sought a stay in August. And then in October, as the Amy Coney Barrett hearings were underway, the court did this sort of odd punt, basically saying it would defer consideration of the case until the parties asked the district court to dissolve the injunction. The parties then did that. The district court
Starting point is 00:13:41 denied that request. The government then filed a new stay application in December. The briefing was completed before Christmas. And then on January 12th, it issues this decision. And on some level, the decision might not seem that significant, particularly if the Biden administration opts to rescind this in-person requirement immediately, just as the Trump FDA has done with respect to a number of other types of medication. But it clearly could have broader ramifications. So Leah had a great piece in Slate about this yesterday. Kim, I am sure, has thoughts on this. So, you know, is this a small case or does this bode something much more serious about the potential near-term future direction of our abortion jurisprudence? I'd like to hear from Kim since she is, you know, the editor of Feminist
Starting point is 00:14:19 Judgments about this one first. You know, everybody's been, you know, has their eye on what's going to happen because there are a bunch of abortion cases that are potentially going to go up to the court. And I think that there's a really strong expectation that losing RBG and having her, you know, replaced with Justice Barrett, who I will never refer to as ACB, means that we're going to lose Roe, right? And so I think that part of what we're looking at here is trying to, you know, read some tea leaves about what's, you know, what's coming down the pipe. You know, we also had that sort of weird, I won't call it weird, but you know, Justice Roberts weighed in on this one as well. And I think, you know, there's been some thought that he would be a vote to protect Roe, but it's actually
Starting point is 00:15:07 not going to matter at this point. So, you know, everything that's happening here is exactly what we would expect to happen. You know, this country has long treated abortion as exceptional, so there's nothing surprising about that. You know, there's nothing surprising about in particular targeting a rule that has pernicious impacts on women of color and low income women. And it's particularly offensive in a world in which telemedicine has become the norm. Right. All of us are seeing our doctors on screens, not not in their in their facility. So there's nothing shocking about it, but it continues to be appalling. All of us are seeing our doctors on screens, not in their facilities. So there's nothing shocking about it, but it continues to be appalling. And I think we're going to continue to see cases like this. And what we're going to end up with is a world in which we have this total patchwork if Roe
Starting point is 00:15:57 falls. And I'm thinking about places like New Jersey, which happens to be where I live, that, you know, are anticipating the fall of Roe and actually passing statutes now to try to protect the right to access to abortion. So it seems like that's the direction that states should be moving in if they actually want pregnant people in their jurisdictions to be able to terminate pregnancies. Other jurisdictions are actually doing the reverse and putting trigger laws in place that would automatically foreclose the prospect of state-level abortion accessibility if Roe does fall. So, I mean, there's a real divide here. And what will likely happen is you'll probably have this sort of kind of parentheses
Starting point is 00:16:41 across the country where abortion is available like across the northeast and then on the west coast and then there's broad swath in the middle in the south where it's not. That's right. And, you know, it's interesting to kind of think about what the world will look like if we if it comes to that. So you think about places where people don't have access to abortion services. And I'm just thinking about, you know, don't have access to abortion services. And I'm just thinking about, you know, like women on waves, right? I mean, people who are literally finding ways to get access to abortion to people in countries where you can't have access to it. And what might that look like in the United States, right? I mean, are we going to see
Starting point is 00:17:19 people, and you can already do this, you can order pills to self-abort, you know, in your home. Are we going to see women arrested? Are we going to see women being convicted? Are we going to see women, you know, spending time in prison? So there's a little fear of the dystopia that potentially comes once we're in a world where there are very few places where you can legally access abortion in the United States. And so the court provided no explanation for why it allowed the FDA to enforce this requirement. So we're left guessing a little bit about why it did so. It's very possible that a majority of the conservative justices adopted a very watered-down version of the undue burden standard because, of course, to uphold this requirement, which impedes access to a very watered down version of the undue burden standard, because of course, to uphold this requirement, which impedes access to a very safe medication, you know, balance against the risk of a pandemic seems like, well, if the government can enforce that, they can probably enforce a bunch of other restrictions as well. But the only justice that explained their vote to allow the FDA to enforce this requirement is, as Kim mentioned, the chief justice who wrote separately to say, you know, he was relying on his concurrence from
Starting point is 00:18:31 South Bay Pentecostal, which said that courts owe deference to politically accountable entities on how they handle matters of public health. But as Justice Sotomayor noted in her dissent, there wasn't actually a public health determination here. There's no reason decision by any agency head or expert explaining why medication abortion should be or was treated differently than any other drugs for which the FDA had weighed the in-person requirement. And also the Chief Justice is not exactly a big fan of deference to federal administrative officials in particular, like he's questioned that in other areas. And so the fact that no other justice joined that opinion, coupled with the fact that this principle doesn't truly seem generally applicable to federal administrative officials leads me to think that perhaps this is a sign of a watered
Starting point is 00:19:17 down undue burden standard. And you contrast this decision with the court's previous decision in Roman Catholic Diocese, in which the court said that it would no longer defer to public health officials when, you know, constitutional rights were allegedly burdened. And I just think this is a very ominous sign of things to come. Absolutely. that I thought was really important, just in terms of thinking about how an undue burden test might play out, you know, is she pointed out that if you make it harder for people to access abortion early in their pregnancies, then you're pushing it to later in the pregnancy, which means surgical abortion, which means greater physical risk, and also more expense in order for people to be able to do that. So if you were doing a real undue burden analysis, and undue burden is garbage anyway, but if you were really doing an undue burden analysis, one would think that that kind of thing would clearly be a problem. And yet I'm
Starting point is 00:20:16 a little worried that that's not the direction that we're going in. So I kind of took the Chief Justice's reference to South Bay Pentecostal sort of like trying to make that happen again. I mean, he'd sort of been smacked down with that and Roman Catholic diocese. And I wonder if that was an opportunity to just sort of like, this is still out here. We need to sort of think about this. But, and again, like maybe this says more about the dynamics among the justices with the introduction of Amy Coney Barrett and the sort of diminution of the chief's power. But I thought it was an interesting moment and a sort of telling tell, I guess, from the chief justice. Can we also say that we told everyone this would happen?
Starting point is 00:20:57 We said I'm fine saying that. I mean, I realize this is kind of like a rinse and repeat theme on this podcast, but like some political developments may change the dynamics of this. So the Biden administration will come in in a few days. And it could be the case that the Biden administration will rescind this rule. But again, I think the point remains that this case still signals that the court's composition is really different with regard to abortion now. I mean, if it was vaguely hostile before, it's much more hostile now. And this perhaps is an invitation to other states, red states, for example, to bring cases to the court that will give them an opportunity to say a little bit more about how hostile they might be. Kim, you noted that Justice Sotomayor filed a dissent here and she was joined
Starting point is 00:21:46 by Justice Kagan. And this was interesting to me because I think this is her first RIPA rights dissent, maybe even her first RIPA rights writing. She usually joins Justice Ginsburg's opinions on these things, but she's never actually written one of her own. And this one, she sort of seemed to be calling the spirit of Justice Ginsburg in some really interesting ways. And she specifically concluded the opinion by citing Justice Ginsburg's dissent in Gonzalez versus Carhartt, women's ability to realize their full potential is intimately connected to their ability to control their reproductive lives. Do you think that she's sort of assuming the mantle,
Starting point is 00:22:26 like, you know, the baton has been passed and she's now going to play that role on the court? I hope so. I mean, there's something very powerful about the Ginsburg dissents, although unfortunately she had to write in dissent so much. But I think we need that voice, right? I mean, we need somebody who sort of reminds us
Starting point is 00:22:44 that these things are a little cyclical. And, you know, if Biden ends up packing the court, maybe the cycle will turn really quickly. Tiny little question about the Sotomayor dissent. Well, I guess a couple questions. One, the very last line of the dissent says, for now, I respectfully dissent. Like, was she just saying saying I have a lot more to say on this topic? And like, this is a pretty short writing, like in, it was an incredible dissent, like, and she really does bring this intersectional lens to it, right? She cites Ginsburg, but she talks much more about race and income than I think that this Ginsburg version of
Starting point is 00:23:18 the same dissent, with no disrespect to Justice Ginsburg intended, would have done. So like, it's a great piece. But I think I just couldn't tell the like for now, like what is she foreshadowing? This reminds me of like when you've done something wrong and your mom calls you and she hasn't come home from work yet. And she's like, what are you doing? You're like, I just set fire to the kitchen for now. You're fine. But when I get home, like it was like that, it's like it's coming, like release the Kraken.
Starting point is 00:23:44 Do you think that's what she's doing? Sort of, but I don't know who the Kraken is. Yeah. Even fiercer dissent. Yeah. Right. Yeah. Unfortunately, that's the limit right now.
Starting point is 00:23:52 Like, that's all she can give us. But fiercer dissent and, you know, clearer roadmaps of sort of a better way. And, you know, she's writing for the future, obviously. Exactly. For now, this is respectful. But just wait. But so Breyer, as you noted, Leah, Breyer sort of conspicuously doesn't join this Sotomayor dissent. Kagan does. What is that about? You know, he noted he would deny the application.
Starting point is 00:24:17 So he did dissent from the court's determination. In my mind, I wondered, is he too busy preparing his retirement announcement to, you know, read through the very methodical Sotomayor dissent in time? Or is the fact that he didn't join a sign that maybe he should retire? Unclear. I don't know. Maybe it's one of these things. Maybe it's none. Those were just some thoughts that I had. Okay. Well, I guess we will sort of see if any of that is borne out in the coming weeks or months. I'm here for this big, like, unrespectful dissent energy, though.
Starting point is 00:24:56 Oh, me too. What is that going to look like? Yeah. Yeah. Like, let it fly, Sonia. Here for it. Here for it. When you have a job where you can't get fired.
Starting point is 00:25:06 Like this one. Say whatever you want to. Absolutely. When she releases the Kraken, Kim, will you come back and talk to us and talk about that? Absolutely. Absolutely. Okay, so maybe let's shift gears and talk about the sort of rest of our agenda. So one, the court released an opinion yesterday, that's Thursday, in City of Chicago v. Fulton, which is a case we previewed on an earlier episode.
Starting point is 00:25:27 Justice Alito wrote the opinion for a unanimous court. The issue, just as a reminder, was whether the filing of a bankruptcy petition triggers a creditor's obligation to return real property, like a car in this case, to the debtor. So the specific property in this case arose from the City of Chicago's policy of seizing cars for unpaid traffic tickets or fines. They used to do it by sticking this boot on your car, which they called booting. But here it seems like they actually take the car to a pound. I think the practice has changed since I left Chicago. But in any event, the Chicago authorities are incredibly active at doing this, at seizing cars when tickets pile up. And it's not even that many tickets. So the consequences are really serious for people who are filing bankruptcy and trying
Starting point is 00:26:05 to get back on their feet financially if they don't have access to vehicles. But here the court held that the specific provision that was relied on by the debtor in this case and by the court below did not require the city to return the property. So it was unanimous, but in a separate concurrence, Justice Sotomayor, channeling sort of similar energy, I would say, to her ACOG dissent, though she was concurring here, she emphasized that the court was not deciding whether other provisions of the bankruptcy code might obligate the city to return the property. She highlighted the disastrous effects that refusing to return property like cars can have on a debtor, like I said, particularly people who need a car to get to work. And she encouraged both the Advisory Committee on Rules of Bankruptcy Procedure and Congress to consider how to address this issue. So she went along with the bottom line
Starting point is 00:26:48 disposition, but basically said that that does not cut off all potential recourse for individuals like the debtor in this case. That is a very Ginsburgian move, too, to sort of issue an invitation to an actor outside of the courts to do something. I'm liking this energy. Yeah, very, very Ledbetter dissent. Yeah, she's bringing a lot of RBG energy this week. I agree. She's RBG plus though, right? I mean, she's an intersectional RBG. Totally. And that I think is such a wonderful thing to have on the court. Yeah. So the court, in other news, also permitted the execution of two
Starting point is 00:27:26 additional federal prisoners. Again, there has been a spate of federal executions during the waning days of this administration. These two executions, however, one involved Lisa Montgomery, who is the first woman executed by the federal government since 1953. Two federal appeals courts, the Eighth Circuit and the D.C. Circuit, had issued stays of execution, but the court lifted those stays, again, without explanation, and over dissents from Justices Breyer, Kagan, and Sotomayor. And there were also challenges to the execution protocol as that protocol is applied to prisoners who have or had COVID. So late Thursday evening, the court permitted the execution of Corey Johnson, who had COVID and sought to postpone the execution until he could recover. He also argued that his intellectual disability rendered him ineligible for the death penalty.
Starting point is 00:28:20 The court denied his stay request over dissents by three on the COVID claim and Justice Sotomayor and Justice Kagan on his other claim. And he was executed Thursday evening. He is a 12th federal prisoner executed over the last six months in this sprint to execute federal prisoners in the last days of the Trump administration before someone who has committed to no longer carrying out the federal death penalty assumes the office. There is another execution scheduled for Friday evening. And of course, we're recording the podcast on Friday. So now let's turn to recapping the upcoming week in sittings at the court. And it's a light week.
Starting point is 00:29:01 So first, let me just ask, do we know why it's such a light week in terms of cases? I think court just like really trying to stay under the radar. Is that it? They don't like conversations about court reform or court packing. And so they're like, let's just not decide much and no one will notice that we're here. Well, I mean, this week's grants like will certainly rectify that. I mean, there will be busier sittings later on. But it seems odd that it wasn't more evenly distributed. Like this one seems really light. And if you think about the fact that the chief justice may be crossing the street again to preside over... Well, maybe they knew they needed to leave the 20th open just in case another impeachment trial was starting.
Starting point is 00:29:39 They had a premonition. They're not having in-person submissions at the court until after the inauguration because of concerns about public safety. So, I mean, that may maybe that's part of it, too. No one's there. But it just seems odd in any event. We wanted to talk. to this term in light of the delayed and postponed sittings. And then also now is when they would be hearing cases that were kind of granted last spring when they were probably unsure how this was all going to play out. So they might also have just, you know, delayed or not granted as many, you know, when faced with that uncertainty. Well, we had talked about this before the election, like we thought that the more limited grants early on were to sort of make sure that there was enough room to handle election-related disputes as they came up. So maybe this is the residue of that. In any event, we wanted to talk about one case that was argued
Starting point is 00:30:37 this past week that we didn't preview, but then we'll talk about a case that's going to be argued this week. So Leah, do you want to kick us off with the case from last week? Yes. So the case that was argued this past week that we didn't preview is AMG Capital Management versus FTC. And this is a major remedies case with significant implications for what the Federal Trade Commission has the power to do in cases of unfair or deceptive practices. And the question in the case is whether Section 13b of the Federal Trade Commission Act, which authorizes the FTC to pursue injunctions, also authorizes the FTC to seek monetary relief, such as restitution, and whether there are limits or requirements for such relief. Okay, so this case has us a little bit on the is stare decisis for suckers watch. So and that's
Starting point is 00:31:24 because of two cases, Mitchell v. Robert DiMario Jewelry from 1960 and Porter v. Warner Holding Company from 1946. So in Porter, the court interpreted a section of the Emergency Price Control Act of 1942 that provided for issuance of a permanent or temporary injunction, restraining order, or other order. And the court there indicated that an order for recovery and restitution of illegal rents may be considered as an equitable adjunct to an injunction decree. It also emphasized the
Starting point is 00:31:49 essential connection between restitution and injunction. Nothing is more clearly part of the subject matter of a suit for an injunction than the recovery of that which has been illegally acquired and which has given rise to the necessity for injunctive relief. So the language is pretty clear. Second, in Mitchell v. Robert DiMario Jewelry, the court reviewed a suit by the Secretary of Labor to enjoin violations of the Fair Labor Standards Act forbidding retaliatory firing or discrimination against employees who complained under the FLSA. That act confers on district courts the power to restrain violations of the relevant section. And the court there rejected the lower court's conclusion that it lacked the power to award lost wages. So, OK, so these cases had already been decided and had been on the books for decades
Starting point is 00:32:27 when Section 13B was enacted in 1973. And we usually presume that when Congress legislates, it does that against the backdrop of settled law. And the settled law, again, at the time was that a federal agency's statutory authority to seek injunctive relief included all the inherent equitable powers of the district court,
Starting point is 00:32:43 including the power to order compensatory redress. So do those cases, you know, live to fight another day? Or is the court just going to sort of discard them as it has been want to do? Melissa, what do you think? Well, so I think there's one level in which this case is about the court's fidelity to past decisions. But at bottom, it's actually a really big case for consumers who have been injured because of unfair or deceptive practices and want to get their money back. So I mean, there's sort of the wonky part for us with, you know, Porter and Robert DiMario jewelry. But there's also the sort of basic level of just consumer redress that I think we ought to be cognizant of too.
Starting point is 00:33:26 Totally. And it's a remedies case, which means it's automatically cool. And in a similar vein, I think one thing that I think actually makes it automatically cool is that here at the federal government, it's one of those rare cases where the federal government isn't represented by the Solicitor General's office. So the FTC has independent litigating authority. So the case was briefed and argued by lawyers in that office rather than the Solicitor General's office. So the FTC has independent litigating authority. So the case was briefed and argued by lawyers in that office rather than the Solicitor General's office. But to answer the question about what we think might happen, at the argument, it seemed like a majority of the justices doubted the FTC's power to seek restitution in these cases and were inclined to jettison the Porter Mitchell presumption or just limit it. Again, stare decisis
Starting point is 00:34:06 is for suckers. Apparently, that includes statutory stare decisis, which is supposed to be especially strong. Except when it's not. I don't care. Do you? Except when it's not. But Justice Breyer seemed to think that this case didn't fall within the Porter clear statement rule because he identified some legislative history indicating that the remedies provision was a result of a compromise with the business community. Justice Alito also invoked similar legislative history that would be noted textualist Justice Alito, who was the keynote speaker at the Federalist Society. I did, however, just want to note that in the immediate aftermath of this provisions enactment, the FTC routinely sought restitution. So contemporaneously, it seemed like people understood that the statute
Starting point is 00:34:51 did indeed confer that power on the FTC. But what's a snippet of legislative history in the face of established practice? Justice Kagan and Justice Gorsuch argue that giving the FTC this remedial power under Section 13 would render superfluous or just obviate the limits that Congress had placed on specific kinds of retrospective relief in another section, Section 19. Again, not to split hairs, but I just I don't know if that's the right way to read that section either. Given the context, that provision was added to the act in response to a court decision that said the FTC lacked authority to redress violations for cease and desist orders. So it's not necessarily, you know, just about retrospective relief in general. And then, you know, one other kind of note from the argument is just that Justice Kavanaugh invoked his executive branch experience to depict the FTC as kind of an agency gone wild. I worked in the executive branch for many years, so I understand how this happens when you're in the executive branch or an independent agency. You want to do good things and prevent or punish bad things.
Starting point is 00:36:03 And sometimes your statutory authority is borderline, and it could be war policy or immigration or environmental or what have you. But with good intentions, the agency pushes the envelope and stretches the statutory language to do the good or prevent the bad. The problem is this results in a transfer of power from Congress to the executive branch to decide whether to exercise this new authority. That's a particular concern, at least for me, with independent agencies. So now why isn't the answer here for the agency to seek this new authority for Congress for us to maintain the principle that separation of powers, that the agency should stick to the authority in the text and not go beyond that.
Starting point is 00:36:55 I thought this was interesting because we're usually left speculating about how the justices' prior work experience or experience in government informs their perspective on cases. And here he was making it quite explicit. But I mean, I also just thought it was quite ridiculous. Not that you're holding back. Let me in, coach. So again, that's one important case that was heard last week. There's another case being heard in the upcoming week. And this one is also, I think, kind of a sleeper hit. It doesn't look like it's going to be super interesting on its face because it's about jurisdiction. But when it takes off its cardigan, it's actually amazing and awesome because it's a major climate case. And it involves an amicus brief from none other
Starting point is 00:37:41 than strict scrutiny fan Senator Sheldon Whiteboard White House. And he draws attention to the anti-climate strategy that's behind this nominally dry and wonky issue. And this case, he argues, could be a harbinger of how the courts will move forward in addressing governmental responses to climate change. So it is vitally important. So the case is called BP-PLC versus Mayor and City Council of Baltimore. Also, I just wanted to note for those of you not in the Rutgers live audience, when Melissa was saying, you know, when you throw off the cardigan, she revealed her phenomenal woman shirt, which is also the shirt that Kim is wearing. I was wearing it first. That's true.
Starting point is 00:38:23 I did change so I could twin with you. Why are you going to call someone out like that? I take it back. You can edit that out. Where is the sisterhood? Leave it in, Melody. Where is the sisterhood? All right. So back to BP versus Mayor and City Council of Baltimore. The mention of Senator Whitehouse both here and earlier in the show is making me think that he may need to get an invitation But sort of the specific issue here is a federal statute, 28 U.S.C. Section 1447D, which generally precludes appellate review of orders remanding removed cases to state court. So let's explain that a little bit. So when a plaintiff files a case in state court, the defendant has the option to remove the case to a federal court if the case could have been filed in federal court initially. So what Section 1447D is about is what happens on
Starting point is 00:39:25 appeal when a federal district court finds that a case was wrongfully removed to federal court, so should be sent back to state court where it was initially filed, but the defendant still wants to be in federal court. So the provision basically says those remand orders generally can't be appealed, so you're out of luck, you're stuck in state court for the most part, but it does have a couple of exceptions. It expressly provides that an order remanding a case removed pursuant to the federal officer removal statute, which is 28 U.S.C. Section 1442, or the civil rights removal statute, 28 U.S.C. Section 1443, shall be reviewable by appeal or otherwise. The question here is whether Section 1447D permits a court of appeals to review any issue, and specifically other other issues encompassed in a
Starting point is 00:40:05 district court's order remanding a removed case to state court where the removing defendant premise removal in part on the federal officer removal statute 1442 or the civil rights removal statute 1443. So that brings us to this case. The city here filed suit against BP and other companies seeking damages for harms from climate change, which they say are attributable to the company's actions. There are actually 19 cases pending in federal court presenting the question whether claims similar to respondents are removable from state court. So the city filed suit in state court based on allegedly the petitioner's decades-long campaigns to promote fossil fuel products while concealing their impacts. The defendants removed the case to federal court. Among other grounds, petitioners contended that removal was warranted under the federal officer removal statute
Starting point is 00:40:58 because Respondent's complaint encompassed petitioners' exploration for and production of fossil fuels at the direction of federal officers, and petitioners also asserted that respondents' claims necessarily and exclusively arise under federal common law, which would mean that the district court had jurisdiction under federal question jurisdiction. The district court remanded the case to state court, essentially saying that the case was not removable on any ground, they asserted, and the oil companies appealed. The Court of Appeals affirmed, saying that the only ground for removal that it could review on appeal was a federal officer removal ground, not the federal question ground about whether the claims arise under federal common law. So at the heart of this dispute is the meaning of the word order for purposes of Section 1447.
Starting point is 00:41:45 The relevant clause in 1447D states that an order remanding a case to state court that was removed pursuant to the federal officer or civil rights removal statutes is reviewable by appeal or otherwise. Petitioners are also making a policy argument, though, that plenary review of remand orders in such cases advance Congress's goals, because cases in which the defendant has a colorable but ultimately unsuccessful argument for federal officer or civil rights removal may implicate similar federal interests where the defendant has one or more meritorious grounds for removal. All right. So we just wanted to briefly highlight an amicus brief that Senator Sheldon Whiteboard Whitehouse filed in this case. It does not disappoint. It argues as follows. as part of a continuing effort to block progress on addressing climate change. The fossil fuel industry has tried to close every door, local, state, federal, legal, legislative, administrative, to a solution to the climate crisis. Here they invite this court to help them.
Starting point is 00:42:54 And it goes on from there. But it's good. It's righteous. And I love that despite having singled out for personal attack by Justice Alito in his Federalist Society speech, he's not being cowed in the sort of the language in his amicus briefs. He's like, if anything, I think he's dialing it up a little bit. He's well past for now.
Starting point is 00:43:11 He's like fully on to releasing the Kraken. Yep. All right. So that's the upcoming sitting. Now it's time for us to dig into a little court culture. And there is a lot going on, much of it related to what's been going on outside of the court, just across the street at the Capitol, where on January 6th, as many of you know, we had an attempted insurrection to prevent Congress
Starting point is 00:43:37 from certifying the results of the duly conducted election of 2020. So last week, we all know that Twitter, Facebook, Instagram, Twitch, Pinterest, and other social media platforms suspended at real Donald Trump. I will note that former President Barack Obama has a presence on all of these platforms. And President-elect Biden is building his official account. It's not – he needs more followers, I think. But he's getting there. It's a great week for people to understand what the First Amendment actually says. Yeah, no, there were all these – or not, right? There was a lot of really pretty terrible legal commentary out there.
Starting point is 00:44:16 The one thing is I think without even meaning to, some of the instinct that underlies the kind of know, formally clearly incorrect claim that violates the First Amendment for Twitter to, you know, kick him off the platform. There is like a kernel of something kind of correct or insightful there, which is that like, you know, we don't necessarily want the people who happen to have stumbled across this sort of development of this technology to sort of be the arbiters of debate. And I think they were absolutely, I think it's possible to hold the view both that it was completely right to kick Trump off these platforms, but also have a healthy degree of skepticism about the governance schemes at places like Twitter and sort of a desire to have some kind of democratic input in the kind of rules of the road and rules of engagement. But yeah, most of the legal
Starting point is 00:44:58 commentary following the suspension and then actual termination was lacking. It also, I think, raises a question about how these particular platforms function. They are private entities, but to some degree, they have expanded to such a degree that they're almost functioning as public utilities. And this may just be a case where technology has outpaced regulation and there's a gap. And I think we saw some evidence of that gap being addressed last summer when they had all of those hearings, like, you know, like when Jack Dorsey appeared before Congress, you know, with that huge beard that looked like he was about to cure the czar's hemoph. And I think part of the First Amendment questions are wrapped in that our public understanding of these platforms is that they're very public. And in fact, they're still private entities. There's something interesting about thinking about how issues like this can create these strange bedfellows, right? Or this incredible disconnect. You know, I mean,
Starting point is 00:46:02 there's something amazing about listening to people who, in a normal set of circumstances, are super pro-business and super pro, you know, private industry, who are saying, well, let's nationalize Twitter, and let's, you know, nationalize Facebook, which is sort of antithetical to what they're talking about in most other realms. And what would that even look like, to sort of take over these private entities in order to be able to control who they control, right? So there's something, we'll see what happens. And are we even seeing like a political realignment on the state action doctrine itself with, you know, just a few terms ago, Justice Kavanaugh described the state action doctrine in
Starting point is 00:46:43 Manhattan community access as kind of this important principle of ensuring limited, you know, government and an important principle of conservatism. And now, you know, you have Josh Hawley and other Republicans, you know, attacking the state action doctrine and saying, you know, no, actually, the First Amendment should apply to these platforms that have the kind of power like Twitter and other social media companies do. Yeah, I think we could see a real realignment. And I think it'll be interesting to observe. Okay, so other, you know, obviously big news from this week, the president was impeached again. Doesn't it feel like Groundhog Year? Like we were just doing this this time last year. So my Cardozo colleague, Beck Ingber, had a very funny tweet about just having put away last
Starting point is 00:47:22 season's impeachment materials. And I was like, I was embarrassed to admit that, but I will now admit it. Like my, my home office papers sometimes linger for a while. So I literally had just put, had pitched into the recycling a lot of papers from the last impeachment, maybe two weeks earlier. Too soon. Too soon. Yeah, I know. And it was like some of the specific Ukraine stuff, obviously I didn't need, but like some of the, you know, I had like printouts of, you know, excerpts from relevant federalist papers and, you know, constitutional had like printouts of, you know, excerpts from relevant Federalist papers and, you know, Constitutional Convention debates. And I really would like all that back. But this is a simple impeachment argument, I think, actually, you know,
Starting point is 00:47:53 certainly there isn't time for it. Although there are some complications now, given the timing. Totally. Yeah. Yeah. So, you know, people are, I'm sure, aware of this, but just, you know, in case anybody's been under a rock for the last week, right, the president was impeached with a little bit more GOP support in the House than the last impeachment. So last time he had no Republican votes for impeachment. This time 10 did and some from very, very red districts. So I thought the number 10 was, you know, better than zero, dishearteningly low still in light of the conduct at issue. But so that is done. And then the question, right, is what is going to happen next? So obviously, when the
Starting point is 00:48:30 House holds the power of impeachment, the Senate has the power to try impeachments. There's not a lot of time left until President Trump is former President Trump. And Mitch McConnell and, you know, well, really, Mitch McConnell has shown no interest in pulling the Senate back into session soon enough to actually begin a trial prior to January 20th. So it seems really clear that the trial will start either on the afternoon of inauguration or the next day. I suppose it could be a little bit later than that, but it seems like it's going to be either the 20th or the 21st. And there are some questions that have been percolating about whether there are any constitutional problems with holding impeachment after Trump leaves office, probably the highest profile person to not only raise doubts, but suggest that there is no way constitutionally to do this is former appeals
Starting point is 00:49:11 court judge Mike Luttig, who also, as we said in our last episode, had this kind of star turn in the letter that Mike Pence wrote the morning of the counting of the votes on January 6th, and then later in the day, of course, the storming of the Capitol. So Luddick, you know, correctly, we think, advised Pence that he had no, you know, authority to throw out any particular slate of electoral votes, turned around and penned an op-ed saying you couldn't try the president after January 20th, which just seems wrong based on the Constitution's text, on the history of our impeachment practice. We have impeached former officials, although not, you know, former presidents. And just as a matter of, you know, kind of sort of pragmatic, workable constitutional structure, right? It's just,
Starting point is 00:49:53 it would be deeply problematic to allow a president to evade responsibility in the form of impeachment, just because the misconduct happened, you know, late enough in his term. So I don't think there's a huge, it sounds like Mitch McConnell actually is not really raising any questions about the jurisdiction of his body to hold this trial. So I think it's going to happen. But there is a question, I think, about the jurisdiction of his body to hold this trial. So I think it's going to happen. But there is a question, I think, about whether Trump and his team will try to get a court to weigh in on this question. I think the answer is that they shouldn't, that impeachment procedures present non-justiciable political questions. But that might not stop him from trying to get a court to hold otherwise in this case. Does this mean that Chief Justice John Roberts is going to spend his 66th birthday once again in the
Starting point is 00:50:25 Senate chamber drinking cold milk with the senators and celebrating his big day? He got a little surly last time. So will that happen again? I don't know. I mean, there are actually questions about who should be presiding over a trial that is going to occur after the president leaves office. Specifically, will it be the chief justice or will it be Vice President Harris? You know, I think the better understanding is that it should be the chief justice, but Melissa's intrigued.
Starting point is 00:50:57 And can you imagine all of the amazing eyebrow action? Oh, yeah. When she gives the face she gave to mike pence to you know all of the people to rudy giuliani you're right to rudy giuliani john eastman josh holly when he argues this is like first amendment protected activity so on and so forth yeah no it's if for now was a face right it'd be like that's what i thought about this i've been thinking it should be roberts but in light of this conversation I think I'm now shifting my position and I really want Harris to preside over this trial. I'm not sure that our preference to see the face that has no chill is really a valid. It should be Roberts. But I also think that like if, you know, I don't, I'm not sure it much matters, right?
Starting point is 00:51:46 Like the trial needs to happen. And I think that Roberts, Roberts could basically decide to do it without conceding that the Constitution requires it. He could just do it if the Senate asks him to. And I think that, you know, despite sort of the public's need to see the faces, I think Harris probably has other things that she should spend her first days in the White House attending to. So it really isn't the highest and best use of her, you know, first couple of weeks in office, I would say.
Starting point is 00:52:08 Is this his first time going into like a like into public and performing chief justice duties? I mean, they've been on Zoom or the telephone. I mean, he's just like, you brought me back here in the middle of a pandemic for this? Like, well, he swore Barrett in right at the court. Yes, there was that. So but that was like, like, he hasn't beenrett in right at the court. Yes, there was that. But that was like brief. And that was less public than this would be. Yeah, definitely. I think we're going to get a little bit of, he's not going to
Starting point is 00:52:36 be super happy. I think we should send him some swag. I think we should too. Like a hat that says, for now. That's our next line of merchandise, the SS-inspired line. For now, I respectfully defend. Would you? I would. Better than a hat that says daddy, right? Accurate. accurate um so there are also now calls to investigate and possibly censure congressional
Starting point is 00:53:10 representatives and senators who were involved in the attack on the capitol in january 6th specifically by participating in the rally that preceded it and encouraging the mob. And, you know, they voted to object to the election results. And, you know, I think some of the reasons why an investigation is really important is some of the things that have come out in the aftermath of the event. You know, there are reports that Representative Ayanna Pressley's panic buttons had been removed from the office. You know, there are statements by some of the people that have been indicted that they were let in the door or encouraged by Capitol Police officers. There are, you know, videos and photos of some of the people, you know, who stormed the Capitol with maps and plans.
Starting point is 00:54:07 And so it seems like there was coordination. And all of that just requires an investigation to figure out how exactly this was planned, funded, organized, I think, in order to prevent it from happening again. One of the more heartbreaking things that i saw uh about this was actually a statement by you know speaker of the house nancy pelosi um who said about her staff you know who you know hunkered down in their office that they knew to turn off the lights, barricade the door, and hide under the table because they grew up doing those drills in schools. I mean, it's just appalling to me
Starting point is 00:54:57 that we are having to train and teach the next generation to survive violent mobs because like this is now a realistic possibility. I just, oh yeah, that was crushing to me. Yeah. I think part of the response also, I have, I have teenagers, so that's why I'm on TikTok. So don't, um, I know you all have talked about TikTok too. I'm looking forward to it. I can see you guys on TikTok. But, you know, there was a lot of talk on TikTok with young people also saying, you know,
Starting point is 00:55:32 this is how you do it when somebody's, you know, which is just an awful thing to think about. But also folks who were saying, you know, maybe this will be the thing, right? That makes people in Congress really start to think about what do we have to do in order to make our country less dangerous. And, you know, we've seen that all the time. Right. People don't care about things until they get scared. So might be an interesting session coming up.
Starting point is 00:55:59 So we are winding down to the fading days of this administration. And I suspect that there's going to be some big developments going forward. We need to hear more from the Biden administration about who their picks to lead the SG's office are. So we've already gotten the AG pick, and we talked about that in the last episode. But we still haven't heard who's going to be the SG or the deputy SG. And Leah, you had speculated earlier that you thought know, by, you know, simply Democratic votes could alter the calculus about who, you know, they could have as a Solicitor General. But the position that I actually think we need to learn something about, perhaps before the nominee for the SG is the
Starting point is 00:56:58 Principal Deputy SG, who, given how the Federal Vacancies Reform Act works, will actually be the acting Solicitor General at the outset of the administration until there is a Senate-confirmed Solicitor General. And I assume they don't want, you know, the holdover from the Trump administration, Jeff Wall, to be the acting SG for the first few months of the Biden administration. So, you know, we kind of need someone now. And I'm very curious, you know, who these nominees will be. We got to know in the next couple of days, right? Like you have to imagine like, you know, this weekend will probably be busy on the personnel announcement front. You know, it could be busy on the pardon front too, right? Like if the president wants to do more pardons, you know, if he's going to pardon members of his family, which it seems like he is clearly going to do if he wants to pardon people
Starting point is 00:57:48 like Steve Bannon. And then of course, the big question, is he going to pardon himself? I think he is. What do you guys think? That will be decided on January 20th at eight in the morning, like maximum time for criming. What do you think he's going to do? Pardon himself? I mean, I think it's like, honestly, like he really should have a lawyer with him deciding this because if he does self-pardon, that really does throw the ball back to the Biden administration to like have a prosecution in order to test whether or not a self-pardon is permissible. And, you know, do you want to risk that?
Starting point is 00:58:22 I mean, Biden has talked about like, you know, let's heal, whatever. It's a big risk. So, you know, I wonder if he will do that. You know, again, the family pardons are I think those are likely to come down probably even earlier. Query whether Javanka, i.e. Jared and Ivanka, need a pardon for forcing Secret Service agents to use the bathroom at the Obama's house. Is that a crime? You know, as we said on Bridgegate, it's petty. Is it criminally petty?
Starting point is 00:58:57 I'm not sure. And we should say in an uncharacteristic defense of Jared and Ivanka, the Obamas, after permitting access for a while, eventually after a very unfortunate incident, also kicked the Secret Service out of their bathroom. I said you could use it for now. Get yourself a bathroom for now. I can take away this privilege at any point. So that is probably all we have time for for now.
Starting point is 00:59:30 Yeah, you see what I did there. Thank you to our producer Melody Rowell. Thank you to Eddie Cooper for making our music. Thanks to our wonderful hosts at Rutgers Law and our terrific guest and co-host Dean Kim Mutcherson.
Starting point is 00:59:47 Thank you also to Alianza for co-sponsoring this event, and Rutgers Law student and strict scrutiny listener, Tina Taboada, for being the impetus for this show. We also wanted to give a special strict scrutiny shout-out to Megan Stevens, the Executive Director and General Counsel for the Women's Legal Education and Action Fund, who is leading the organization and moving on to her next adventure. And one more quick shout out, which is to friend of the show and excellent lawyer and human Ruthann Deutsch. She's making her SCOTUS debut in Prometheus Radio next week. We previewed that fascinating case in our last episode, but I totally missed that she would be arguing the case and making her debut.
Starting point is 01:00:22 So we will listen with interest next week, Ruthann. And a special heads up to those of you who are taking con law or teaching con law in this upcoming spring semester, we are releasing the Kraken. As of Monday, our spinoff podcast, Irrational Basis Review, will be available to help you get a leg up on all of those important first year, second year, third year con law topics like standing, Marbury versus Madison, Heller. It's all there. So please check that out and we hope you'll find it as useful as we found it for preparing for class. So check it out.

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