Strict Scrutiny - Roses & Thorns

Episode Date: July 12, 2021

It’s here … our term recap! We go over all the roses and thorns from OT2020, or at least as much as we have time for in this jam-packed episode. Follow us on Instagram, Twitter, Threads, and Bluesky

I'm slightly worried that after this episode, people are going to think I'm obsessed with Sam Alito. Are you? I mean, like, he just personifies so much of, like, what motivated me to become more vocal and do more public commentary about the federal courts and the Supreme Court in particular. So, anyways. Oh, my God. He's actually, like, to thank for all of this. You brought this on yourself, Sam. Mr. Chief Justice, may it please the court.

It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. The band is back together. We are reunited and it feels so good. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. And today we've got a term recap episode for you. So we will discuss what we saw as some themes of this term, do a lightning round of highs and lows from the court's term,

and proceed to a court culture segment that is, like last year, a commentary largely on court commentary. And of course, at the end, we'll discuss the retirement that was not, or at least not yet to be. So Leah, will you kick us off with some of the big themes from the term? So one theme that I feel the need to discuss is Sam Alito versus the world. You know, despite the fact that we have a 6-3 conservative court, Sam still feels like he is getting the short end of the stick and losing the battles that he ought to win, whether it is the 77 page concurrence in Fulton, 77 pages to concur. I mean, it's not crashing the Supreme Court's website and server like his dissent in Bostock. But, you know, this guy is still ready to fight.

Or the ACA dissent, the Brnovich majority, the dissent from the summary vacuator in the court's excessive force case, Lombardo v. City of St. Louis, in which he said the court had vacated an excessive force claim because it feared denying the petition and bearing the criticism that would inevitably elicit, as well as some behavior and oral argument, we'll discuss. It is Sam versus everyone in his mind. I'm totally with you on this, Leah, but I don't know why he's so vexed. I mean, he's living his best life. He has a six to three conservative supermajority. He is winning all over the place. He is 71 years old and has the skin of someone 20 years younger. What is there to be mad about? You are living your best life. The only Thomas, Amy Coney Barrett, and Brett Kavanaugh, right? Wobbly. Exactly. Very wobbly. Unreliable.

Not at all conservative. Not fellow travelers. Suitors. All of them. Every single one. Is it possible that like coming so close, at least in his own mind, to fundamentally changing the law in Fulton and then not quite getting it done, at least not explicitly, kind of had the spillover effect in terms of his overall mood for the whole term? It kind of feels to me like that might have happened. I mean, it's possible. But again, like he already got that on the shadow docket in Tandon versus Newsom and Roman Catholic Diocese. So he already got the fundamental change to Smith that he wanted. He just didn't get all of the fundamental

changes in as explicit a form on the regular docket, I guess. And that was enough to send him into a spiral. So here's my take on why he is actually mad. So he's been on this court since 2005, right? So he's going into his 16th year now. It's Sam's sweet 16. Aw. My super sweet 16. I'm going to overrule everything. OK, bear with me.

He's in his 16th year on the court. He's seen the court move to the right. But it's been a slow drift, right? And it hasn't been as seismic, I think, as he would like. And I think that's really the core of this anger. Like, he wants real changes, and he wants them right now. I mean, he's kind of Veruca Salting this. Like, give it to me now.

Yes, while the contrary music. Do you know what I'm talking about? Oh, yeah, of course. Charlie and the Chocolate Factory, one of the kids. Thank you, listeners. Veruca Salt, I want it now, daddy. I want it now. I want to overrule Smith now. And John Roberts' daddy here?

I think he might be. Who's your daddy? This episode has really gone zero to 150 in like five minutes, and it's not even my fault. I'm so happy to have you back, ladies. How's it my fault? It's not my fault. I'm not saying it's anyone's fault. I'm saying it's to your credit. Yes. Great literature, great works of literature, like Charlie and

the Chocolate Factory. I think that is why he's mad. He wants more movement. He wants explicit movement and he wants it right now. I think, I mean, this is a metaphor I think we've used before, but it's been clear for a long time that the court is moving in a conservative direction. And I think in particular, you know, when Kavanaugh replaced Kennedy, there was this question of whether the court, you know, it was like an express train that was going to go kind of directly to these really conservative destinations or like a local train that was going to proceed much more gradually. It's obviously a New York City metaphor, but I think it works. Very New York City. And I think it's a fairly local train in certain respects. And that is what he is so mad about.

He's on the one, he wants to be on the A. This means nothing to me, just to be clear. Like a mountain. I'm a real American. Yeah. I was like, what is like. He's basically on the D train to Coney Island and he would rather be in an Uber. No, we still need like a Michigan metaphor. He's on the Amtrak to Chicago that has to yield to all of the freight trains. No, he's stuck on Mackinac Island on a horse going slow when he would rather be in Detroit in a car. Like F9 style. Okay.

Right, right, right, right. Okay. That's good. Yeah. So that's the source of his frustration. So second theme that I would highlight is just the fact that it's a 6-3 conservative court matters. And we saw this in a few different aspects, although court commentary downplayed this,

as we'll touch on at the end of the episode. One, we saw this in summary reversals. It is a rule of procedure at the court that to summarily reverse a case, that is to decide a case without argument, you need six votes rather than five. And the fact that there were six votes on the court mattered. It allowed the court to reinstate death penalty sentences in summary reversals at the end of the term in Dunn v. Reeves, as well as earlier in Shin v. Kyer. We also saw this on the shadow docket where there were, you know, more than 20 rulings in which three justices appointed by Democratic presidents

publicly dissented and the court made major changes to the governing law and precedent on the shadow docket, including in the religion cases we've already referred to, like Tannen versus Newsom. This also mattered on the shadow docket for the death penalty cases, where you had a majority of the court allowing the Trump administration to proceed with a flurry of executions in the waning days of the administration, despite the fact that defendants wanted to raise challenges to the execution protocols, among other things. This also mattered because there were a few cases in which, if it was still a 5-4 conservative court, the outcome might have been different. So in particular, the Arthrex case, the appointments clause challenge to administrative patent judges, as well as TransUnion, the case on standing under the Fair Credit Reporting Act,

those cases might have come out the other way if we still had a Justice Ginsburg rather than a Justice Barrett. It's hard to know, right, the counterfactual in TransUnion. If Thomas hadn't been needed to form a five-justice majority, would he still have felt at liberty to sort of, you know, to peel off and join the liberals? Or would he have said, like, you know, I'm a good soldier, I'm going to provide the fifth vote? I think with TransUnion, I genuinely don't know. I tend to think of him as actually, you know, obviously extremely idiosyncratic views, many of which I find pretty insane, but principled in his views. But the fact that he has been kind of willing to peel off from the conservatives so much more on a 6-3 than a 5-4 court makes me wonder how much he sort of fell into line in prior cases and doesn't need to now. Well, I mean, the conservative legal project marches on without him so he can afford to take stands. I mean, it's sort of like Kagan and Ramos last term where,

you know, there was a secure majority and she could take a stand about stare decisis. And not only that, by peeling off from the fellow conservatives, he generates a bunch of headlines about how the court is not voting ideologically and how the court isn't a partisan ideological court, even while the law proceeds furiously in one direction. They're not quite as furiously as, you know, Sam Alito would like. The last thing I would say as far as the theme is, you know, the liberals dissent both respectively and kind of not respectfully or kind of respectfully for now. This is where left to my own devices, I would just proceed reading additional passages from Justice Kagan's dissent in Brnovich, which basically was, you know, the excuse for the last few episodes as well.

We could just do a reading of it in one of our summer episodes, like in its entirety. That is an idea that I am on board with. Yes. Another theme that's kind of related to this question of a 6-3 court and Justice Kagan and the other liberals on the court is, so I think we are all in agreement that the 6-3 court matters a great deal. But we did have in a number of cases what, you know, we have called with a hat tip to Dahlia Lithwick, this kind of phone anonymity, right, either unanimous or near unanimous rulings that make the court appear, just as you were saying, Leah, kind of more unified and more moderate than it actually is. Exhibit A here, I think, is definitely Fulton. Nominally a unanimous case. You know, you scratch the surface and there is just tons

of disagreement there. The number of unanimous or near unanimous cases was really high, like two weeks before the end of the term, which led to a lot of takes about like what it all meant. But by the end of the term, it was back in normal range. But I do think that there was a perhaps surprising amount of consensus in both some high profile cases, again, obviously Fulton chief among them, and then some lower profile cases. And I do think it is worth pressing a little bit on how we should understand that consensus. So I have a take. I kind of like want to try out with you guys, but I'm curious if anybody has any sort of any reactions first, and then I'm going to dive into my perhaps quirky take. I'm all ears for your

quirky take. So here's one possibility. So I think Roberts et al, I mean, I think Roberts and probably Kavanaugh and probably Barrett are clearly interested in minimizing the closely divided cases. They want to ward off reform efforts. They are happy to proceed slowly and incrementally. They want to take the temperature down and public scrutiny off the court. But if that's all there was to it, I'm not sure we would have seen the liberals joining these unanimous or near-unanimous opinions quite the same way that we did.

So we'll talk more about where exactly. Obviously, we've talked about some of talk more about where exactly. Obviously, we've talked about some of this over the course of the term, but immigration cases, a lot of statutory interpretation cases, administrative law cases, at least on remedies. But I wonder if the liberals, there's another type of strategy at play. And I kind of think if there is, it may have everything to do with democracy, right? Okay. So basically, here's the idea. So Roberts, Kavanaugh- Wait, wait. What is democracy? I read Justice Kagan's dissent in Brnovich to basically be like democracy girl, you in danger. I think she obviously believes that. And so I guess my question is, is that motivating her in other cases that are not explicitly about kind of the preservation of democracy?

So I think, again, so Roberts at all, I think clearly don't want this commission messing with them. They don't want the court to be a big election year issue. They think a term with a lot of agreement will take the wind out of the commission and general kind of reform efforts sails. I don't think that's a project which Alito or Thomas or Gorsuch subscribe, but really just like, you know, the chief and one or two others. But in terms of— So can I inject something here, though? Yeah, yeah. So one of the themes that I thought we should talk about for the term is just sort of the disdain for Congress. And it kind of cuts against this idea that they're interested in

the commission, which would obviously require some kind of congressional cooperation or consensus in order to do anything about structural reform of the court. I don't think they're worried about Congress or Congress actually doing something. I think to the extent they're worried about this commission and the talk of structural reform, it's really that they're worried about the talk, not that anyone is actually going to be exercised to do something about it. I think it is merely the fact that this is in the ether, that so many people are talking about it. Not that it has a snowball's chance in hell of getting through this Congress, but just that it's on people's minds. And they just like, it's basically keep the court out of your mouth

is kind of the strategy. And I think you're right about that. Well, again, but do we think that that is driving, you know, Kagan, Sotomayor and Breyer? Like, I think if they think that- Honestly, I think there's a non-zero chance it is driving Breyer. Breyer.

So it could be. Okay, so maybe Breyer, also possibly Kagan and Sotomayor who genuinely don't want the court politicized sort of come what may. But if they think that the court is charting a very dangerous course, I could well see them, you know, interested in a public conversation about court reform that might either result in structural reform or I think you're right, Melissa, likely not, but still potentially have some, you know, kind of incremental dampening effect on the conservative majority's enthusiasm for big, sweeping, fast change. But say that that's actually not what's driving them at all. Say it's something different, right? So we're talking about this term and taking a broad view. And early in this term, we saw both the pre- and post-election litigation, right, reach the court. No merits cases, but there were multiple rounds of lawsuits out of Pennsylvania seeking to throw out large numbers of late-arriving absentee ballots on the grounds

that the legal change that would have resulted in their counting could only be made by the state legislature. That's a theory that, as we have noted on the podcast, has real support on this court. The Texas original jurisdiction suit largely premised on the same theory. Other cases brought on lots of other different kinds of theories. The court was able to duck, right, those cases, both post and pre-election, I think largely because in the end, no single state was outcome determinative. But look, 2024 could be different, right? One of the lawsuits out of a state that would tip the balance of the election could put court at the center of a close presidential election. There could even be something similar in 2022 if congressional race could potentially determine control of a chamber

of Congress, right, the Senate or the House. And as people are no doubt aware, and obviously as Leah, you talked about in both of the Brnovich recap episodes, since January, we have seen waves of state voting legislation that restricts access to voting in all kinds of ways, but also in some instances that politicizes election administration, right, removes or disempowers nonpartisan election officials, replaces them with partisan actors. I just think all of these developments and the kind of continuing support for this big lie that, you know, Joe Biden was not the rightful winner of the 2020 election, I think increases the chances that a major case out of one or more states makes it to the Supreme Court in the next presidential election. I also think it increases the chances that the counting

of electoral votes, right, which was the occasion of the January 6th insurrection, is understood as an opportunity to contest election results. And a challenge to some decision made there could also lead to the Supreme Court. Whether the court would decide such a case, I think, is very much an open question. But anyway, in any of these scenarios and many, many others, I think the court could be faced with an incredibly consequential decision about the election. And I can well see the liberals on the court taking the view that the court is in a better position than any of our other institutions to protect the rule of law and basic structures of democracy. And so they should work to kind of knit together a coalition of justices

broadly committed to basic democratic norms and to the rule of law in the event the court ends up faced with such a case. I'm not saying it's the right strategy. No, no, no, no, no, no, no, no, no, no. I just want to, I want to make sure I understand this theory. The theory is that the liberals are basically finding consensus and joining these superficially unanimous opinions in order to preserve the credibility of the court to issue a decision, rejecting an effort to overthrow the election and or building credibility with the conservatives to get them to reject that challenge? Well, it depends on the direction from which the challenge comes, but essentially to side with democracy and to have that decision heeded by the public.

But I think as a first order matter to basically, you know, kind of pull together a coalition of like, yeah, so kind of rule of law centrist. I'm not saying this would be my strategy. This is one descriptive hypothesis. I hear you. I mean, I'm going say, I think this is an Occam's razor moment. Like the obvious thing here is that they're staving off or trying to slow down what is obviously going to happen in the near future. I mean, it's just like rearranging deck chairs on the Titanic. I don't think there's any grand plan to save democracy, which is not to say I don't think they're concerned about democracy. I don't think that at all. I think they're very concerned about it. But I don't think they see their conservative colleagues as, you know, like a kind of Justice League for democracy, like that there's

some sort of shared set of rule of law values. I think they're well aware that there probably is a huge disjunction with the other side about what the rule of law requires. I think they're just genuinely trying to like, just slow it down. Like, I mean, this is finger in the dike kind of stuff. But this isn't like some grand plan. It is sort of the ascent of free exercise as like the sort of the most important constitutional value. There's the demise of a constitutional protection for abortion. Like there's those discrete it's that they could be trying to slow down. But I just wonder how much the kind of September, October, November, December sort of litigation that swirled around the court,

but never centered there, has kind of remained present in the justices' minds, even as it has faded from a lot of the kind of end-of-term commentary. And again, I think you're right, there's a massive divide, I think, on the court. But the question is, could Breyer, Kagan, Sotomayor have in their minds some sense that, in fact, there are multiple divides and that there may One is that let's assume that they actually peeled off from the conservatives and all these decisions were like 6-3 that moved the law in conservative directions. I actually think in that universe, the Supreme Court might have more credibility relative to the population for whom they would be rejecting these efforts to overturn the election to do that. That is, if you have this reliable set of 6-3 rulings, and then all of a sudden when the court is asked to overturn the election to do that. That is like, if you have this like reliable set of six, three rulings, and then all of a sudden, when the court is like asked to overturn the

election, you get some of the conservatives joining with the liberals, then it's like, okay, well, like these guys who are like always voting with us all of a sudden aren't right, like maybe that's a sign that like, we have gone too far and we are destroying democracy. Second is I just don't think that like, rational people and I put both Justice Kagan and Justice Sotomayor in this bucket, maybe Justice Breyer, although, like, a little bit less certain with each passing day. I don't think a rational person would say, like, my decision not to join Fulton is going to, like, buy me enough, like, credibility or goodwill to meaningfully influence John Roberts or Brett

Kavanaugh's decision not to literally pull the trigger on democracy and say, yes, you get to throw out validly cast votes and, you know, we will select the winner of an election. I just don't think like any sane person would think that. Yeah. So maybe it's an utterly insane theory. And I certainly don't think that they're kind of doing it in any kind of explicit or even necessarily like implicit kind of tit for tat kind of way, like Fulton and then like, in any kind of explicit or even necessarily like implicit kind of tit for tat kind of way, like Fulton and then like, let's kind of like keep preserved democracy guys cool. And like, there's like a handshake agreement about it, obviously. But if the question is like, if we, I mean, because if the court in Fulton is really doing what we think the court in Fulton

is really doing, I'm not sure I see why we don't have Sotomayor and Kagan, at least those two, Breyer put to one side, screaming their dissent about it. There's something else driving them. And if it's just that, like, they think they get a narrower opinion that saves, like, the sort of actual hammer dropping for another day, like, I'm just not sure why it's worth the effort, as opposed to galvanizing public opinion about the kind of radical transformational change the court is making, which would be the purpose of a screaming dissent in a case like Fulton's. I just come back to Catherine Franke and the sort of speculation that maybe Alito did have the majority in Fulton and he lost it. And part of the reason that he lost it was because the

chief was able to peel off the liberals to join him in something incredibly narrow, but nonetheless quite consequential, but not as consequential as overruling Smith. I also think there are reasons to want to prefer slow changes, right? Like think about the people that will like benefit from civil rights statutes or non-discrimination protections in the interim. Think about, you know, four years ago or five years ago, we didn't know we were going to be living in a world with a 6-3 conservative Supreme Court, right? Like you don't know what the world four years from now or like five years from now is going to look like. Maybe Democrats grow a spine. Maybe the Supreme Court looks very different. You know, hard to say. And so buying that time is,

I think, you know, an important value, even if there's no other purpose. Oh, I totally agree. But couldn't you still have done that? Because you would still have the Roberts opinion as the controlling opinion and Smith being nominally preserved. And you could still have a screaming dissent from like Higgins and Sotomayor. you know, you would still have the kind of slow incremental change. You would just have made a different point. I think like a fractured opinion is just going to be like less significant than, you know, a universe in which you have like a clear majority. Right. Like that's part of like the problem with like June Medical and like why that hasn't kind of like shored up.

Right. Like abortion protections is like there wasn't a controlling majority on the merits. All right. So I take you guys to be completely unconvinced. I prefaced it as kind of a wacky theory. And I guess I didn't disappoint. Okay. All right. So I guess we'll see if there's more evidence to support at the end of next term. What other big term themes do we want to highlight? What's a little textualism between friends? You know, we saw Justice Neil Gorsuch being tempted by the dark side, both in Justice Alito's majority opinion in Brnovich, as well as the Affordable Care Act dissent. And as I suggested, like, I think his decision to join the Alito ACA dissent should haunt him. And it's in part for that reason that I will be reading his peons to textualism rather than Regé-Jean Page. He just, he doesn't deserve that anymore. You know, another sort of textualism point. God, we talked about Van Buren when it came down. It's almost like Van Buren as like this sort of reductio ad absurdum of like the textualist methodology in which Justice Barrett Marshall's nine different dictionaries

cites them a total of 17 different times in her majority opinion. Okay, one of the sites is like Thomas citing Black Slaw Dictionary, but mostly to define the term so, although not exclusively. So it just felt like, what is this enterprise even about? Like, honestly, 17 dictionary citations to nine different dictionaries. I wanted to flag something about a case that we talked about, which is the Terry case about the Fair Sentencing Act and the First Step Act, which is a little bit, again, to the kind of puzzling decision of the liberals in cases like Terry to kind of to agree with the outcome. So the more I've thought about this case after we discussed it, the more I've kind of thought about how Justice Stevens, for whom I clerked, would have written basically something that said, no rational Congress could possibly have wanted us to find this Terry ineligible for

resentencing when far more serious offenders are clearly eligible for resentencing, right? The Fair Sentencing Act, the First Step Acts were about eliminating or at least reducing the crack powder disparity. Congress wanted individuals whose sentences reflected that unjust disparity to be eligible for resentencing. Members of Congress have written briefs urging us to find Terry eligible for resentencing. Many lower courts and the federal government have endorsed a reading of the statute which would make him eligible. It is the sensible way for us to give effect to the intent of Congress. And that is the way to decide this case rather than decide how best to fit together a string of words sheared of all context.

And I remember, Leah, when we previewed this case, you were like, this is a hard case. Like, I don't think it's that easy. And they make it sound like as a matter of text, it's just so easy. And like, no one said anything about it being difficult or about there being other considerations in the mix. And obviously, as we discussed, Sotomayor took sharp issue with Thomas's reading of the history of the disparity. But as to the reading of the text, she completely went along, as did everyone else in the court.

And I'm just not sure, as I sit here, I really understand why. So, Kate, your theme for the term is the silence of the liberals. In a number of key cases, I guess maybe Fulton first and foremost, and then in a lot of statutory interpretation cases, yeah. In this theme production, does Anthony Hopkins jump out and start eating people? Sonia Sotomayor is played by Jodie Foster. Okay, great. I honestly had a similar thought about at least some of the immigration cases on the docket. So Palomar Santiago about whether an individual who was ordered removed on the basiscket. So Palomar Santiago about whether, you know, an individual who was ordered

removed on the basis of a crime that didn't actually make them removable could challenge the removal order notwithstanding some statutory restrictions that generally preclude people from doing so. The idea that that opinion would be unanimous with no one kind of endorsing the proposition that when there is this like fundamental defect that makes you not removable is a special case accommodated for by the statute or in light of background principles of constitutional avoidance or due process was a little bit strange to me and that is part of what frustrates me about the court commentary i know we're skipping ahead about how this is you know not so conservative a court and like so very moderate.

It like neglects all of these larger rulings in which you get consensus. And like that consensus is against immigrants. It is against criminal defendants. Like this is not a moderate court if you account for the substance and realities of these decisions. Yeah, I mean, I think it's true in the immigration context also about Garland versus Ming Dai, in which the Ninth Circuit, remember, had said, well, in these asylum proceedings, there's a presumption of credibility if there's no finding to the contrary. Nothing in the INA is really explicit about that one way or another. And Gorsuch basically says, well, the INA doesn't say you can use this presumption. So the Ninth

Circuit was without any basis to create it. But I can imagine in another era, at least a couple of justices saying the INA just isn't clear one way or another. And this is a perfectly reasonable rule to forge in the face of statutory silence. And you had nobody make that point. And Yellen versus the Confederated Tribes of the Chehalis Reservation wasn't a unanimous opinion, but we also talked at some length about sort of the oddity of how much focus there was on text and canons of interpretation and how little focus there was on kind of these broader, even substantive canons, but kind of sorts of policy considerations that actually feel like courts should really, you know, consider when they're deciding a statutory case.

But the court, at least explicitly, has been remarkably uninterested in indulging those kinds of conversations. Although, as we, I think, also have noted, clearly it is being guided in a lot of these cases by, so, you know, take Garland v. Ming Dai. This, you know, the assumption that the INA embodies, you know, kind of a hostility to asylum claims. Like, that's not, there's no words in the INA that say that, but that is clearly, I think, what Gorsuch is kind of using as sort of an overlay on the INA. A theme that I wanted to highlight from this term is the court's, I think, pretty obvious disdain for Congress. And I think it's related to some of the points that you've made about statutory interpretation, Kate. But the case that really brought this home for me was TransUnion versus Ramirez, where the court held that only a plaintiff that was concretely harmed by a defendant's

violation of the Fair Credit Reporting Act has Article III standing to seek damages against that defendant in federal court, completely blowing through the cause of action that Congress provides to such plaintiffs in the statute. And this was a five to four decision of the Justice Kavanaugh writing. Justice Thomas, this is one of those sort of unusual opinions where he peeled off from the conservative bloc to join the liberals. And he wrote a dissent in which Breyer, Sotomayor, and Kagan joined. And then Kagan also filed a dissenting opinion in which Breyer, Sotomayor, and Kagan joined. And then Kagan also filed a dissenting opinion in which Breyer and Sotomayor joined, so she didn't get Thomas for that one.

But again, just the idea that not only are we dismissive of Congress when they don't say things and don't provide clarity in a statutory scheme, when they actually do explicitly note something in a statutory scheme, we're still gonna say like, we don't care. DGAF. Like, sorry, Congress. Try again. And again, I just, when people talk about the restraint of this

court and how this is a court that understands its role in a tripartite federal system, again, I come back to TransUnion. Like, where is the respect or deference to Congress at any point here? Yeah. And I actually thought a couple of the administrative law cases that we talked about also reflected this kind of contempt for Congress or dismissing of Congress as a big theme of the court. So, you know, in both of these cases, Arthrex and Collins, the court invalidates these institutional design choices made by Congress, right, and the president. So the political branches make these design choices about how to,

you know, create and empower these administrative patent judges in Arthrex or the head of the Federal Housing Finance Administration in Collins. And in both of these cases, the court finds that the institutional design choices made by Congress are constitutionally impermissible because the court is so fixated on this idea of total presidential control over subordinates within the executive branch. So in Arthrex, the court finds that these APJs who sit on this patent trademark appeal board are exercising too much power and too much independence for individuals who are appointed the way these folks were, which is as inferior officers. And the court says, look, we've got to change the law so that the head of the PTO can review their decisions. And then in Collins,

the court says that this FHFA director has this improper protection from removal. And, you know, we should say in both of the cases, the court exercises, I think, pretty wise remedial restraint. Right. But in so doing, it kind of reveals how arbitrary I think its rulings are. And just kind of more broadly, it feels to me really perverse for the court kind of in the name of democracy. Right. It's important the president, because the president is elected, to have control over the, you know, all subordinates within the executive branch, but also to undermine that the choices as to how to structure and empower these offices are also made by Congress, which is, you know, composed of individuals also selected. So I do think the kind of contempt for Congress theme that you just mentioned, Melissa, is on display in those administrative law cases as well. So should we move to a lightning round of highs and lows from this term? Roses and thorns?

It's a stretch to find the roses, but we found a few. Yeah. So let's start with our favorite majorities. As Kate, you just suggested, this was a stretch for me. And so I have chosen to select Borden, the armed career criminal act case in which Justice Kagan technically wrote a plurality opinion, finding that crimes with a mens rea of recklessness don't qualify as violent felonies on the ground that they have as an element, the use of force. But I am transforming this into an effective majority. Presto, bitches. Presto is a line she used in her dissent. Haha, get that reference. Anyways. Yes. So Borden, plurality, one of my favorites. Insane. This was one of my favorites. I did want to maybe have an aside on the tone of some of Justice Kagan's writings because on the day we are recording this episode, or maybe the day before the National Review came out with this piece, Justice Kagan's rhetoric diminishes the court. And this drives me bonkers. It just drives me insane. Because one, where were you guys when Justice Alito was calling the court's opinion in Bostock a textualist pirate ship? Like, where were you when Justice Scalia was

saying the court's opinion in Boumediene was going to get Americans killed or he would hide his head in the bag if he ever joined a majority opinion like that in Obergefell versus Hodges? You know, I think sometimes Justice Scalia's rhetoric was overblown, but I also think you sometimes do need to change the tone in order to convey how wrong and how ridiculous a majority or a counter argument is. And that's something Justice Kagan does, you know, as for Nita and I talked about with the Brnovich dissent, that's what I think she did there. And so like nothing makes these people angrier than if you treat their arguments as not serious, like they always want their arguments to be met with like a resounding embrace of good faith and have them treated as reasonable and within the bounds of debate and convention.

And sometimes that's just not true. And it has to be okay to sometimes say, and that's absurd. If I had to name an actual majority, I might say the Chief Justice's opinion in Pennies, which we didn't talk about, but it's about the federal government's authority to allow private parties to exercise the federal government's condemnation power against states. Maybe Justice Gorsuch's opinion in NCAA versus Alston, the

antitrust case. But again, you're really kind of scraping the barrel. Although even scraping, did you just pick a Gorsuch opinion as one of your favorites, Leah? I mean, it's not horrible. We are nonpartisan and moderate. I'm talking about him as a writer. I'm not talking about his substantive views. I'm capable of providing objective analysis. And this opinion isn't full of overwrought pans about textual interpretation because it is interpreting what? The Sherman Act, an act that has effectively

been treated as common law and allowing judicially created law. And he doesn't go insane about that. Like it is a very reasonable opinion applying principles and precedents that the court has previously announced. No, it's totally true. When he's doing in Indian law cases in this NCAA, like when he's not really actually just kind of like pulling out the burn book and like dropping textualism one-liners, like his writing is vastly improved, I will say that. So I feel so basic saying this, but Mahanoy, is that like too obvious a choice? Like as a favorite opinion, like this is Justice Breyer's opinion, the salty cheerleader case. It was just like short, snappy, fun. Short, snappy, fun.

It was. The student wins, but the schools still get to actually exercise some authority. Everybody wins. And, I mean, most importantly, Justice Breyer gets a good assignment. And so Justice Breyer wins. And I just feel like, I mean, I'm trying to think. So when I clerked on the court, Justice Breyer was just coming off of his, like, you know, I don't know't know if like record holding, but certainly long 11 year streak as the junior justice. Like that's just a long time. And he just never got good opinion assignments. And I just I feel really good for

him that he's getting them now. So this is like the Oprah Winfrey of opinions like you get free speech, you get authority to decide what speech is disruptive. Everyone got something. This was a fun case. And it's also worth noting, it was decided just as that really huge New York Times profile about the ACLU no longer taking civil liberties cases or free speech cases came out, which was completely bananas because they've brought so many free speech cases. And this was one of them, and it was totally unmentioned here. So I thought that was a nice sort of confluence. Check your facts, New York Times. Check your facts.

So I have to say, I think you all are asking a lot of me here to select my favorite opinion of this term because the pickings were slim for roses. And you guys got to the good ones first. Like, so if this were, you know, the flower market at Whole Foods, you guys got there and got all the good sunflowers. And I'm left with, like, the really janky sunflowers with, like, no petals on them. So I think my favorite opinion of the ones that are left, maybe Uzegbenem versus Przewski, which was that case about nominal damages. And it was the really sort of odd, strange bedfellows coalitions where liberals were in favor

of the nominal damages, conservatives were in favor of the nominal damages. But, you know, this is not about the writing per se, but I think the outcome was really important for civil rights plaintiffs as we highlighted on a past show. So yeah, I guess that's where I'll be on that one. But I don't think there were a lot of really standout ones for favorites this term. I'm sure the next term's opinion in Dobbs, the Mississippi abortion case, is an early contender for our favorite. So I'm just claiming that one preemptively i hope the aclu will make me a shirt in advance exactly uh and it will just say fuck on it not the fuck school fuck softball fuck cheer fuck everything and it won't be beige it'll be red we haven't said that leah is wearing that. I am wearing the Bahanoi-inspired t-shirt.

Now, separate category. This one might be a little bit easier. Favorite writings, concurrences, or dissents. Obviously, you know, I would include Justice Kagan's dissent in Brnovich. Putting the burn in Brnovich. I want my own Brnovich book, like a Brnovich burn book. I am just going to make a separate book with all of her best lines from that opinion. I will read it at night when I am feeling bleak and sad and it'll all be good. Other one might be her descent in Edwards versus Vinoy, the case about the retroactivity of Ramos, and whether people who were convicted with non-unanimous juries could challenge their convictions. And sleeper option, maybe when Justice Brett Kavanaugh wrote separately in NCAA versus Alston to embrace critical race theory, by which I mean, he said, sorry. That, you know, anyways, that was a funny joke to me.

I'm laughing. You can't see me. I'm on the floor. I'm picking myself up. So Justice Kavanaugh wrote, Those enormous sums of money flow to seemingly everyone except the student-athletes. College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries. Colleges build lavish new facilities. But the student-athletes who generate the revenues,

many of whom are African-American and from lower-income backgrounds, end up with little or nothing. Yeah. I like that. I don't know if that's quite critical race theory. I was being slightly specious. It's quite critical race theory. I was being slightly specious. It's only critical race theory in the sense that it mentions race and racial disparities, which according to some state legislatures are elements of critical race theory and prohibited

as a result. But yeah. Fair. So my favorite writing wasn't one that was on the regular docket, but was on the, I guess, so-called emergency shadow docket. And this was Justice Sotomayor's dissent in FDA versus ACOG. So this was about the FDA rule that required individuals who are seeking the medication abortion two-pill protocol to actually show up in person to get the pills, show up at a doctor's office to get the pills, as opposed to having

the pills mailed to them. And Justice Sotomayor wrote what I think is her first reproductive rights opinion in the history of her time on the court, which I thought was significant, in which she sort of kind of took up the baton from Justice Ginsburg, who'd passed away a couple of months earlier, but added her own, I think, repro-justice intersectional twist on it. I mean, so she talked about how COVID impacted minority communities disproportionately, that the requirement to show up in person would be borne disproportionately by people who were poor, communities of color. And so there was a real intersectional element to it that did not often come across in Justice Ginsburg's writing

about reproductive rights. So I was encouraged to see that come to the fore and see her really take the stage in a reproductive rights case. I guess I would also add, now that I'm thinking of it, when you mentioned that, Justice Sotomayor's dissent on the shadow docket in the United States versus Higgs, one of the cases in which the court

allowed the federal government to proceed with executions in the waning days of the Trump administration. Yeah, she was trying to add light to the shadow docket. Yes. There was another sort of mayoral concurrence from the other kind of lower profile Fulton case on the docket. This was City of Chicago versus Fulton regarding bankruptcy law. And she concurred in this decision that had to do with the repossession of vehicles and their interaction with the bankruptcy law regime. But she sort of wrote separately to urge Congress to take another look at amending the bankruptcy code in light of the importance of vehicles to, in particular,

low-income individuals, communities of color, in, you know, actually making good on the kind of fresh start rationale of bankruptcy. So she writes to basically say, look, if a driver has a fine, she cannot immediately pay the balance balloons. She needs the car to, you know, actually serve as reliable transportation to and from work. She finds it impossible to pay her debt, recover her vehicle. The cycle bus continues disproportionately burdening communities of color. And so again, she sort of is bringing this intersectional lens. On the bottom line, she's agreeing with what the court says, but urging Congress to take up the issue. Okay, so in terms of other separate writings, the other one I wanted to highlight was Justice Kagan in Collins bringing more kind of big stare decisis is not for suckers energy. So she says, look, I lost in sale of law.

That's the case from last term involving the CFPB. We should say we don't think she lost in Selah Law in the court of history, but she did lose in the actual Supreme Court in Selah Law. So she says, I concur. Right. New favorite majority opinion, Justice Kagan's opinion in Selah Law. Issued by the court of public opinion. But in terms of for the actual court, that was not a majority opinion. So she says, look, I lost in sale of law. So I got to go along with what the majority does here, which is to basically apply sale of law. I agree there are not meaningful distinctions between the position the court found constitutionally infirm and sale of law and the position here.

But she doesn't join any of the court's reasoning on the substance because she thinks the court kind of extends sale of law. And she sort of, she kind of scolds the court in what it does from the majority with respect to precedent. So she says, and thus departing from sale of law, the majority strays from its own obligation to respect precedent, to ensure that our decisions reflect the even handed and consistent development of legal principles, not just shifts in the court's personnel. Astari decides to demand something of justices previously on the losing side, right? So they, meaning he or I, must fairly apply decisions with which they disagree. But fidelity to precedent also places demands on the winners. They must apply the court's precedents, limits and all, wherever they can, rather than widen them unnecessarily at the first opportunity. It is important to sort of say that, you know, yes,

sometimes you're stuck with decisions that you don't like, but also she's almost sort of shifted to kind of this damage control mode, which is, you know, winners at least need to proceed modestly or with caution in terms of expanding the footprint of these decisions. That too is part of the obligation of stare decisis. Winners shouldn't act like losers. Exactly. That's directed at you, Sam. That's right. General caveat. exactly that's directed to you sam that's right general caveat so uh maybe we can go on to favorite

moments from oral arguments yeah this is better there were some good there were some spicy takes at oral argument okay yeah so my favorite moments um basically all things sam alito, by which I mean, like, these aren't actual favorites, but they are things that were, again, very evocative of this new court, and I think indicative of, you know, various justices like outlooks on the world. So one example is when Justice Alito just bulldozed through the chief justice's attempts to begin Justice Sotomayor's questioning time in Trump versus New York, the challenge to the president's efforts to exclude undocumented individuals from the census. We talked about that previously on the show. It's so crazy that that was just this past term. It feels like a lifetime ago. It was just December or term. It feels like a lifetime ago. It was just December or

November. It's crazy. Second is Justice Alito happily taking over Justice Breyer's argument time after Justice Breyer had an audio problem and then the Chief Justice wrongfully cut him off in the ACA case, California versus Texas. We talked about that previously. Justice Breyer was like, wait, my machine wasn't working. And Justice Alito said, I thought it was Justice Breyer's time. The chief is like, no, Justice Alito. And Justice Alito is like, OK, great, here I go. And then Justice Alito bringing up the NAACP LDF brief, as we predicted he would in Americans for Prosperity Foundation versus Bonta. This isn't a moment, but a general observation about the telephonic format of the arguments this term, and obviously at the end of last term, which is that Thomas's kind of chops

were on full display, right? And I do think there is a mistaken impression among some quarters that he normally doesn't ask questions at oral argument because he's like checked out or not engaged. Now, be fair about this narrative. It's not that he's checked out or not engaged. People say he doesn't ask questions because he's stupid. And there is nothing further from the truth about that. So like, not my favorite justice, but the idea that this man is dumb is so off the charts, insane and wrong. Well, it's offensive and it's racist, clearly. It's totally offensive. It's

super racist. They said the same things about Thurgood Marshall. They say the same things about Justice Sotomayor. This man is playing chess just like the rest of them. So do not sleep on Clarence Thomas. And to be clear, there are plenty of fair attack lines on Justice Thomas. But checked out, not engaged, not smart, like none of that is remotely true. None of that. And I think it was useful for the kind of general public to have a sense of just how engaged he is, how good his questions are. Like he was really on it much more than some of the other justices.

And I don't know. I'm so curious about whether he'll kind of revert to form when they return to in-person arguments in the fall or whether having kind of gotten in the habit of asking questions, he's going to do more of it. I genuinely don't know. One of my favorite moments from oral arguments also involves Justice Thomas. So he had some great hypotheticals this term. So there was the very unexpected and abrupt and sort of took me aback hypothetical about the serial killer in United States versus Cooley was not expecting that at all. He was like, you know, what about if you pull over someone and he fits the description of a serial killer? And I was like, whoa, like a lot of stuff going on there. I was not expecting that. And then there was another one. I think this was

in the case involved, the statutory interpretation case involving the guy who went and looked up someone's profile. Oh, Van Buren. The car rental guy. Thank you, Van Buren. When he had that sort of off-the-wall hypothetical, like, what if you were checking up on your wife? Right. Oh, right.

Yeah. Yeah, yeah, yeah. I was just like, wow, what's living in your head? What if your spouse installs a tracking device on your RV? That was a funny one. That was very funny. And then, you know, also not to be outdone in like the wacko hypotheticals,

Justice Breyer in Cedar Point. What if it wasn't a union organizer, but a spaceship? That was insane. What if we were back in the plague? So I mean, like they were just doing the most and I was kind of here for it. So oral arguments, I think were actually fun. It was really nice to hear them as they were happening. So if you're listening, justices, please keep that up. That was really good fun for all of us. All right. So an easier category,

least favorite opinions. This is good fun for all of us. All right. So an easier category, least favorite opinions. This is like just an abundance of riches. Yeah, exactly. Like, how can I pick just one? Obviously, Brnovich, you know, the stunning indifference to democracy and multiracial democracy at an extremely tenuous moment in the country's political history. Not great. Second is TransUnion versus Ramirez. I just think like the edifice and

architecture on which that entire jurisprudence is built, namely the idea that it is the court, not Congress, who gets to determine like who is injured, what injuries are real, is absurd and just an affront to the separation of powers, not grounded in history and just like indefensible as a matter of political theory. So that one is also probably up there for me. Obviously, majority opinions, Brnovich and AFP versus Bondus bring to mind. Leah, you did terrific recap episodes of both of those opinions with Frenita Tolson, Nick Stephanopoulos, Rick Hassan, Wilfred Codrington. I should say all four of those guests were so great. And I have just a few things maybe to add about both of those. One, I don't think... Yeah, they can come back anytime. It's always shocking to me

when white men are capable of giving good interviews and commentary on the court, particularly straight white men. It's just bigotry of low expectations, maybe. I don't know. It's just stunning to me how articulate they are sometimes. Rick, Rick did well. Yeah. Yeah. No, Rick and Nick, you know, great job guys. Yes. Rick, Rick and Nick. Right. No, exactly. Like not just one example, but two. Who would have thought? On one episode you found two? That's incredible. No, that was actually two distinct episodes. Oh, thank God. Yeah. You could not possibly have two white men on one episode. Oh God.

Please. Who do you think I am? I did have two men on one episode and that was a little bit much for me. I'll be honest with you. So you did those great recaps and I don't have tons to add, actually. One thing was Justice Alito in Brnovich had this incredibly peak Trollito invocation of the Justice Stevens opinion in Crawford, the voter ID case that just like made me see red. Like he kept the usual incidents of voting, the usual burdens of voting, like just this gratuitous like mention of the author of the Crawford opinion. I just thought was like he loved doing that and it just drove me nuts. I will say I like just like a little kind of clerkship background. I had to suffer through Crawford twice as a law clerk.

I clerked for Judge Posner in the Seventh Circuit when he wrote the opinion upholding the Indiana voter ID law. And then I clerked for Justice Stevens on the court when he wrote the opinion upholding the voter ID law out of Indiana. And I still feel kind of traumatized. I think I'm not, this podcast isn't me working through that case exactly in the same way that Leah's working through NFIP. But I do think it still haunts me. But anyway, so that kind of made me see red. And just one kind of thread I wanted to pull together, actually, from both of the two conversations you had, Leah, which I thought was just like such an interesting thread. So obviously you guys talked about Shelby County, which, of course, Kagan discusses at length in her Brnovich dissent.

Franita mentioned Ruscio, the partisan gerrymandering case. Nick struck kind of an optimistic note about AFP and the future of campaign finance disclosure. And just kind of those threads made the point, just kind of separately, but I just wanted to make the points together, that the court in a lot of these cases, these democracy cases in particular, does kind of these like this sort of democracy erosion two-step, right? Or like even three or four-step, which is in these cases you see the court either like affirmatively invalidating attempts to make democracy genuinely representative or in Ruscio saying it's powerless to intercede, which, you know, has the effect of keeping democracy not particularly representative. And each time it does that, it kind of leans heavily on these other avenues that it says remains open for pursuing these worthy interests of actually

improving and facilitating democracy, right? So in Shelby, it strikes on Section 4, but really, you know, Section 5 functionally. But this, hey, you've still got Section 2, right? Remember the end of the opinion, I think, as you pointed out, Leah, says our decision in no way affects the permanent nationwide ban on racial discrimination in voting found in Section 2. But then, of course, here they come in Brnovich for Section 2. And like, what else might be subject to that same treatment, right? In Ruscio, the court says, sorry, we can't help on gerrymandering, but Congress under Article 1 or states themselves could do like what Arizona has done and create these independent commissions. But, you know, the court only very narrowly upheld Arizona's power to do that. As Frenita pointed out,

we don't really know what this court would do if faced with that question. In Citizens United, it strikes down these longstanding corporate expenditure limits, but enthusiastically upholds disclosure, not only like upholds it, but reasons that the very existence of disclosure as an alternative justifies what the court does in invalidating these other limits sort of predicated on anti-corruption rationales. So the question I think is when it will drop the hammer on these other things. But anyway, I just thought those two conversations together really nicely laid that kind of groundwork, which is the court likes to appear kind of modest and measured in pointing out that it's not closing sort of all avenues to kind of improving or reforming democracy, but subsequently

often returns to kind of close or slam shut the kind of remaining open doors. And then the one other thing I was going to say was, I'm not sure this was sort of made explicit, but just like how different the court is in its kind of receptiveness to the government interest, especially the fraud rationale in Brnovich versus AFP, right? In Brnovich, the court's like, oh, it should go without saying a state may take action to prevent election fraud without waiting for it to occur and be detected within its own borders. And then in AFP, the chief says it goes without saying there's a substantial government interest in protecting the public from fraud, but the record supports the district court's finding

there wasn't a single concrete instance in which pre-investigation collection of this information did anything to advance the AG's investigative efforts. So Arizona doesn't have to wait for evidence of fraud before preventing people from voting. But California has to wait for evidence of fraud before requiring nonprofits to give non-public lists of major donors to state authorities. Like it's just so wrong. And I think worth contrasting the court like on that specific point.

OK, that's all I got. So I agree with you about the itinerant or selective commitment to fraud prevention and AFP versus Brnovich, which stood out as well. But I think there's so many terrible opinions to choose from in this term. Like, how can you pick just one? It really is a kind of Sophie's choice. Cedar Point was pretty bad. And what was especially, I think, terrible about it is that it just never acknowledged the degree to which it was really skirting this line toward having huge ramifications for all kinds of property rights issues and just regulation more generally as it relates to impositions on other people's property rights. just completely unacknowledged in that regard, in the opinion that they sort of made it seem like they were making this one kind of very surgical intervention about this California law. But it was obvious that it was like an opinion that laid the groundwork that could later fuel an entire revolution in how we think about the regulatory state and the requirement of entering into private property in order to do

regulatory things. So that one, I think, was incredibly problematic. Fulton was, you know, a disaster. I mean, everyone talks about the unanimity of Fulton. There were three justices who pretty much said we would be on board to overrule Smith. And then you had Justice Barrett's concurrence that was like, you know, everyone says Smith is really terrible. There are all these criticisms, you know, well-taken criticisms of Smith, but this isn't the right vehicle, which was like an invitation, please bring the right vehicle to really overturn Smith. So, you know, again, I'm not sure why the liberal justices entered into that kind of appeasement opinion, but it's coming, and they made it pretty clear that a true challenge to Smith is coming,

and coming pretty soon. Tandon was pretty terrible. If you want to, what's your pick from the shadow docket? That's pretty terrible. There was no actual opinion in FDA versus ACOG. It was just an order, but an order to make people leave their homes in the middle of a pandemic to seek a two-pill protocol from a doctor when you're telling everyone to stay home for all of these other reasons, like, just sort of evinces the disdain for reproductive rights. And so that was a problem. Transunion, pretty problematic for all of the reasons you've suggested, but a decision that has really kind of floated under the radar in terms of the commentary. I do wonder if the decision might

have a silver lining in that if the legislature cannot provide a private cause of action to get into federal court in the consumer protection realm in TransUnion, does that suggest that the Texas law, the Texas abortion law, SB8, which basically turns individual private citizens into private attorney generals to go and enforce the substance of this abortion law, does that mean that that sort of private right of action can also be dismissed by a court going forward?

I wonder if TransUnion might be able to be a way to sort of defeat this enforcement issue in the SB8 case. I don't think so, because it would just be in state court, right? So it doesn't have like federal legs, obviously, but could the same logic, like we don't have to listen to the legislature when the legislature provides us with a private cause of action to do certain things? I don't know if the Texas state courts interpret the Texas state constitution to like contain the similar kind of separation of powers rationale that like underlay transunion, but maybe I don't know. But it's not really the separation of powers issue in transunion. It's just like the whole idea that you don't have a particularized injury, which I think is the same in SBA. Like

what is your injury if someone else gets an abortion and you just happen to know about it? So I wonder. The logic, if the Texas courts did deploy it, I think it could be helpful. But I think I agree with Leah. Like, I just think it turns on how the Texas courts interpret the Texas Constitution, and I don't know the answer. again, I like some sports. I enjoyed watching the Golden State Warriors, especially when they were winning. But I really don't like the kind of inside baseball kind of sports stuff where people like sort of just splay out like really sort of idiosyncratic knowledge of sports and like you're expected to know it. And so I hated when Justice Kavanaugh invoked the Michael Jordan Hall of Fame speech where he talked about being cut from the team in high school or middle school or whatever.

It was such an inside basketball moment. And assuming that everyone knew it was just gross. And I actually hated all of his basketball shenanigans. Like, it's like, join a league, talk amongst your friends. Like, no need to do that. I also really hated Justice Alito invoking the LDF brief in the oral argument for Americans for Prosperity versus Bonta because I'm not sure he cares about all the other stuff that LDF does in other contexts.

I'm not entirely sure he does either. And obviously, all of my favorite moments are also my least favorite moments, whether it is just, you know, invoking the LDF brief, gutting off Justice Breyer, interrupting Justice Sotomayor. Exactly. Play that one more time. Yeah. There was that one moment that I don't know if this is a least favorite moment exactly, but it was a fascinating moment when Barrett, I think, inadvertently elicited this incredibly revealing answer from Michael Carvin representing the Arizona Republican Party, which is like, why? Like, why do you guys want these laws? Why are you in the case at all?

Because we want to win. We want to shave off points and win. The people who we think would vote Democratic, who are disproportionately voters of color, from voting because politics is a zero-sum game. He basically said those words. And then, so I thought it was like, it wasn't an instance of her being an incredibly astute questioner. I think she was just kind of taken aback by the answer, I think, as maybe Leah, you observed on the episode that recapped it. And then she quickly changed the subject, kind of realizing what had just happened. You, sir, have given away the whole game. We're not allowed to say that out loud. Right. I mean, the problem is actually, like, the court

might say, like, it's, like, seeking a partisan advantage is totally fine, like, you know, and if that correlates to, like, racial disadvantage, like, sorry, but, like, and so I think that actually is a deep problem, that it wouldn't even necessarily be problematic if the court doesn't, but the court doesn't even really talk about it. Like it just like, that's just like a messy fact we don't want to engage. Well, I mean, look at the places where it doesn't talk about it. I mean, like you had the whole partisan gerrymander cases, like for years and years percolating before Ruscio threw them out entirely. Would no one, like the point of it was that the partisanship matched the race stuff. Like there was such a correlation

and no one really wanted to talk about that, at least in the writings at that point. So can we do an Alito persona watch? We've had so many this term. Do you think Sam Alito is going to worry that we're obsessed with him? I'm not obsessed with him. I'm not obsessed with him.

I don't know that, him. I am just watching the court and providing commentary as things arise. We might have some new listeners who might not be familiar with the nicknames that we drop occasionally. So we just wanted to give you an overview about what's going on here. So by this point, we have introduced peak Lido, troll Lido, faux Lido, and hack Lido. These are kind of oldies but goodies. I'll define them in a second. This year, we also met all emo slash emo Lido slash emotional Lido slash- I like that one. You like emotional Lido?

Emotional Lido. I like that. Okay. Okay. That's what we'll use. You know, we got to workshop these sometimes. Anyway, so recaps for the new listeners. Peak Lito. This is when Justice Alito channels his innermost self, like when he explains why criminal defendants should ultimately lose their cases even when they prevail before the Supreme Court. This was on display in Lange v. California, in which he explained all of the other doctrines

that might justify warrantless entry, even though the Supreme Court said the particular one that the California Court invoked did not apply. Then you have Trollito, when Justice Alito tries to catch the libs in a double bind, accusing them of being the real racists or something like that. An example of this would be when he invoked the NAACP LDF brief in the Americans for Prosperity oral argument. Another persona, faux-Lito. This is when Justice Alito pretends to care about originalism or textualism, two methodologies he is extremely indifferent to and has occasionally mocked, in order to assemble a coalition. An example of this would be his

concurrence in Fulton, which argued that Employment Division v. Smith was wrong on originalist grounds. Other name, Hacklito, is when Justice Alito is unable to conceal his inner Fox News commentator. An example of this would be the entire dissent in the ACA case, California v. Texas, in which in the same paragraph, he insisted that nothing that has happened since NFIB calls for a different conclusion. And at the end of the paragraph, he said, the repeal of the taxer penalty fundamentally changed the operation of the scheme Congress adopted. Other examples from that opinion abound. We also got a little toxic masculito and samsplaining and gaslito. So toxic masculito or samsplaining is when Justice Alito bulldozes through Justice Sotomayor's

questioning time or Justice Breyer's like in Trump versus New York or California versus Texas. Gaslito is, of course, when Justice Alito gaslights. An example of this might be Brnovich versus DNC, in which he insisted he was not announcing a legal test. Narrator voice, he was announcing a legal test. Exactly. Back to the Fox commentator hack Leto tip. Did you notice that Justice Alito was incredibly

concerned with cancel culture this entire term, and it really made its way into a number of opinions. And Mahanoy, he was concerned about it. Very much, I think, where he was. Americans for Prosperity. Yes. AFP and Mahanoy, chief among them. But yeah, no, I think that's a theme he's going to return to. Absolutely. It's a countdown until he uses the term cancel culture in a Supreme Court opinion.

Agree. Next term. I'm sure the occasion will arise. When he cancels reproductive rights. As I was saying, favorite opinion preemptively announced. To be fair, I've said before, I'll say it again. I don't think this is going to be the case, Dobbs, where they overrule Roe explicitly. But that does not mean you should not be super mad and put on your hysterical lady parts, even though everyone will tell you in the newspapers that there's nothing to worry about,

Roe has been saved. No, you stay mad, listeners, because they're just going to wait to really stick it to you in a couple of terms. On that front, let's talk about some big picture events from the term. So obviously, one massive big picture event that kind of shaped the entire term was the September passing of Justice Ginsburg, which foreshadowed all of this, led to the very hasty confirmation of Justice Barrett, And I think sort of shadowed a lot of the way we think about this term, because I'm not sure that we have been really good about thinking about the term outside of what would have happened were she still there, right? So I think there are a number of cases that we recapped where we noted, like Bandemer, for example, the

personal jurisdiction case, like that's likely a case she would have written, I think would have come out very differently had she been there. And there were just a number of cases like that where her departure from the court really did, her very hasty nomination, confirmation, you know, interceded by COVID super spreader, Rose Garden party. Like that's also this term, my God. And to extend a little bit, the kind of express and local train metaphor, like I do think that at least at first appearances,

she seems interested in the local train rather than the express train, right? Like she hasn't been in lockstep with like Thomas and Alito appearances. She seems interested in the local train rather than the express train, right? Like she hasn't been in lockstep with like Thomas and Alito in the way I think that some people, including maybe us some of the time, thought there was a chance she would be. She seems more interested in a John Roberts, Brett Kavanaugh kind of incrementalist approach. I did think that there was a slightly pointed dimension to her concurrence in Fulton, which was, yes, I don't think that, you know,

she clearly is skeptical about Smith. She clearly wants, rather than just kind of burning the whole thing down the way Alito was advocating without a clear sense of what would replace it, she says, we would need to know what would replace it. And also she sort of says, like, I found it a little arch, the way she says, I find the historical evidence rather inconclusive. She's just like, I know, Sam, you worked really hard on those 77 pages, but I just don't really agree. And I thought that was sort of, you know, a pointed attempt to at least demonstrate or display like a bit of distance between herself and, say, Sam Alito. So I thought that was interesting. But it's, you know, it is very much too soon to draw any, I think, broader conclusions about her sort of specific character as a justice. Obviously,

her replacement of Justice Ginsburg is seismic, but her I don't feel like I have a great beat on yet. Well, it's hard to draw conclusions about any of the justices based on this term because it was a pretty limited term. Like, as we've noted before, there were not a lot of cases, 56 argued cases, a lot of action on the shadow docket. Maybe they were anticipating getting some, you know, seismic issues on the election law docket, but not a lot of cases. So they had a pretty thin docket, which, you know, may have worked out well given all of the tumult of this year. But despite having a very limited workload, they still managed to drag this out until July.

So what do you think happened there? Which really effed up our end of term. I'm so still so puzzled. Right? Like we were all traveling last week. Like it was such a mess. But much more important than our respective summer schedules. Like, yeah, what was the deal? John Roberts, I have always understood him to take great pride in always finishing the term before the end of June, just like as a matter of his kind of judicial administration chops, right? Like he just like is an efficient manager. He gets it done. And just like that didn't happen this year. And I don't really know why, since they had so few cases. Well, I mean, they got to like early July. It wasn't like that far. But they'd never gone into July with Roberts as the chief.

Since 1996. Oh, yeah. Or with Roberts. Yeah. Yeah. And a decade earlier. Yeah. So like it had been a long time. Anyway. I think it's because they weren't going on any boondoggles. The pressure of that. Like they weren't headed out of the country. Yeah. Like, I mean, like if you're going to like Spain or Portugal, you're going to be finished and your opinions are going to be in by June 23rd. So you can pack, get you a nice sun hat, buy some suntan lotion, get ready for your trip. But that wasn't happening this year. It may be as simple as that. I mean, a more sort of calculating explanation is by July 1, people are kind of already in holiday, July 4th holiday weekend mode, and there was going

to be less attention paid to Brnovich at least, and they were happy with that. I don't usually think of them as being quite that calculating about the timing of opinion release, even if they are about other things. But here I wonder. While the regular docket was pretty small, there was a huge amount of activity on the shadow docket, you know, particularly related to the coronavirus, whether it was religious liberty exemptions, whether it was voting rights issues, also major death penalty cases, reproductive rights and justice, and other matters as well. So we had a full telephonic term. I think it was really valuable for the public to get to hear live the questions and answers. I very much hope that the court will continue to make available simultaneous audio of the arguments. I don't have a great sense of whether they will,

but I think that the kind of broader Supreme Court kind of commentary ecosystem should make clear to the court that there's a strong desire to continue with that practice even after the court resumes in-person arguments. I don't actually know. Do you guys agree with that? Don't you think it was useful? Yes, absolutely.

What are big developments or big picture events from the perspective of the podcast, not the court? Should we talk about some of those? Sure. Well, we launched Irrational Basis Review, which is our primer, our con law primer series, both for students and those who are teaching con law. We hope that it's been helpful. I assigned it to my con law class this spring, and I think they were pretty helpful. I think students enjoyed them. So we encourage you to take a look at them. And we're going to add more to that library of 20-minute deep dives into certain con law topics. So keep looking for that. And then back to outside the podcast,

we have the Presidential Commission on the Supreme Court, a topic that I think we are going to return to this summer. I am thinking about basically submitting all of our episodes as comments to the commission as public comments, but I could be convinced not to do that. And then maybe the last thing to mention is the thing that didn't happen, our boy Steve retiring. So no retirement announcement at the end of the term or soon after. We're recording this on Wednesday, no retirement announcement now. the odds of a retirement this summer or this term go down dramatically because the confirmation process does take time. Even the super speedy Barrett confirmation took six weeks. And so if you want to confirm someone before the start of the next Supreme Court term, that gives the

administration a more limited amount of time. And I think if he doesn't go by the end of July, like, you know, announcement from the bench, which is not invariably something that justices do, but like some have, that was never on the table anyway. So like, he's not constrained by how this has often been done. And into early July, like, I do think that was when O'Connor announced, and it's definitely something that can happen. But I think you're right, Leah, like, once August hits, it's a little harder to see it happening. But I think you're right, Leah. Like once August hits, it's a little harder to see it happening. But of course, if he makes his retirement conditional upon the confirmation of his successor, he can leave in the middle of a term. I mean, I think they probably prefer not to do that, but there's no reason that he can't. And I think that from the perspective of actually having a confirmation done before the fall 2022 midterm elections, you know, it would be much better for him to do it in the middle of next term than to wait until next June.

Do you think he's waiting to see if Katonji Brown Jackson gets some experience on the D.C. circuit? Is that what's holding him up? I just I don't think that that's that relevant. I mean, I don't think so either. But do you think that's what's driving him? I think maybe he could convince himself that that is part of why he's waiting. But I don't think that would be the real reason. Do you think he's really just at home like this job finally got good?

Yeah. He's like, I got to write the ACA case. I got to write Mahanoy. I will say that to his credit, with his more seniority, I think he has done a really good job of sharing good dissents with his more junior liberal colleagues. So Justice Sotomayor had the great dissent in Americans for Prosperity Foundation. Justice Kagan had the great dissent in Brnovich. Justice Breyer kept Cedar Point for himself. You know, Justice Breyer also assigned Justice Kagan the dissent in Edwards v.

Vannoy and Justice Sotomayor the dissent in Jones v. Mississippi. And I think that is a great institutional citizen, you know, sharing those kinds of opinions with his colleagues. And I think he probably is enjoying himself. And, you know, he is doing like a good job in some respects. But like, I, I cannot believe, I truly cannot believe he has convinced himself that, yes, given everything that is happening, like, I'll just stick around.

Right. I mean, I am quite sure that Justice Sotomayor, who will become the most senior liberal justice if Justice Breyer is replaced, will also be magnanimous in her sharing of dissent assignments. And like, he's not irreplaceable in that respect or any other respect as much as we obviously are extremely fond of Steve Breyer. And it's just such a razor thin Senate majority the Democrats hold. And I think that given what Mitch McConnell has said, signaling that, you know, if he can, he will block any replacement. It is just pretty shocking that he has not made any announcement now. But July's young. It's getting older. It's getting older. It's not that young. That's true. We had so much to cover at the court. We didn't even get to talk about the new Trump lawsuit against Facebook and Twitter. I can't wait till those go all the way up to the

court. And Justice Alito finally recognizes a Bivens cause of action against Facebook, the apparently federal government actor who is violating the First Amendment. There's so much in here. You love to see it. I mean, I have to go back and listen to it, but I'm pretty sure at the end of our Irrational Basis Review episode about the state action doctrine, we were like, this stuff could be in flux. There's lots of interesting ideological scrambling happening around social media platforms. No, we did say that. I think we kind of anticipated this entire lawsuit. We have all these people's numbers.

Like, not just Sam Alito. We have a lot of people destined to know the truth and not be believed. Speaking of knowing the truth and not being believed, maybe we can turn to, as a court culture segment, commentary on the Supreme Court commentary, because it is all driving me insane. I can't single out because there are just too many the number of pieces that say something along the lines of this is a moderate court. This is not the extreme conservative court we were warned about. Roberts, Barrett, Kavanaugh, institutionalists. The court is a model of restraint. Again, I could go on and on, you know, institutionalists, compromise, moderated. I don't even know where to start with these people. You know, for many of them, I would start with, have you heard of this thing called the shadow docket? Because there, there were more frequent ideological divisions that divided along ideological lines. Second is, to remind them,

you cannot talk about what is happening at the Supreme Court without engaging with the substance of the court's decisions. So to say that the quote unquote, like moderate wing of the court is the group of justices who wouldn't throw out ballots that were cast under the then controlling rules in South Carolina. This was literally one of the COVID voting cases that the court decided in the lead up to the 2020 election. Justices Thomas Alito and Gorsuch would have thrown out ballots that South Carolina citizens cast in the election under the rules as the district court had established them. Saying that Justice Barrett and Justice Kavanaugh and the Chief Justice didn't do that does not establish that they are moderates. That's just a complete insane comparison. And I don't

know why, I have some suspicions why reporters do this, but you can't provide commentary on the direction of the Supreme Court without actually making a judgment about the substance of the court's ruling, their effects, and their relationship to the court's prior precedent. And none of these visas really does that. I don't have more to add to that. I feel like every year at the end of term, we do a kind of thing like this where we note the disjunction between our take on things and what's going on in the world. And maybe the problem is then, maybe the problem is us. I think we are being quite clear-eyed about how we are looking at the court. And, you know, maybe we are more pessimistic than other commentators. But I think if you just sort of

scratch the surface and dug a little deeper on some of these claims, like they all just fall apart immediately, like this idea that the court is being moderate. Well, I guess that's right, if you only count up these decisions and the fact that they're still not done, and also you didn't count the shadow docket as well. And that's how you get a moderate court. But all anyone wanted to talk about for the last two weeks is this moderate nonpartisan court. And here we were screaming into the ether that this was a mistake. Don't buy this. And then you have Brnovich and Americans for Prosperity on the last day sort of giving truth to the lie. Yeah. Aside from the destruction of voting rights

and democracy, the play was great, Mrs. Lincoln. I mean, come on. I mean, for what it's worth, I do think that there has been some backlash. Obviously, we have been critical, like Steve Floddick on Twitter and others have been extremely critical of the discounting of or completely ignoring of the shadow docket in some of these tabulations at the end of the term. And I have a feeling that going forward, a lot of coverage of the court is going to try to attend a bit more of the shadow docket because it's just such a wildly unrepresentative picture to just focus on the fully argued cases. So I hope that that is something that was a feature of this term that we're not going to see carry forward. Although, again, maybe that's too optimistic. I don't think

so, because I think you can always select as a baseline. The court didn't do what Justice Alito wanted. And if you select that as the baseline or comparison, right, it's always going to look moderate. You're always going to be able to have the story right that there is this other group of conservative justices who are moderate and that they just seem committed to that approach. So I think that's all we have time for today. I hope this will sate you listeners for the long summer. We will have other episodes, but obviously the court's not going to be doing much as they gear up for what will certainly be a barn burner of a term in October 2021. But until then, you should know that we are no longer going to be affiliated with the appeal, which is shutting down, which that means you just have more of an opportunity to support us in other ways, like with our Glow campaign.

So we would encourage you, if you enjoy the podcast, please consider subscribing and supporting us so that we can pay our producer, Melody Rowell, a fair wage. So check out our GLOW campaign, glow.fm forward slash strictscrutiny.com. We also have new merchandise. There is now a line for every Supreme Court justice, and that could mean a lot of things. So take a look at all of that on strictscrutinypodcast.com. We are thankful for Melody Rowell, our producer, Eddie Cooper, who does our music, and our summer intern, Liam Bendixson, who's done great work for us. And also, hearty congratulations to our Strict Scrutiny superfan, Clara Steen, who won a

Tennessee-wide PTA award for her essay, I Matter Because I'm an Activist. And importantly, Clara accepted her award in our own strict scrutiny merchandise, the Angry Feminist Podcaster t-shirt. And I'm just going to say, Clara, chef's kiss. You looked amazing. It all came together. Congratulations. We're so glad to have you out there repping the pod. Listeners, we will see you soon. Have a great summer.