Strict Scrutiny - Sad Girl Autumn

Episode Date: November 29, 2021

It’s sad girl autumn at the Supreme Court -- Melissa, Kate, and Leah preview the upcoming cases, including the frontal challenge to Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, and discuss the Court’s lack of action on the S.B. 8 cases. Follow us on Instagram, Twitter, Threads, and Bluesky

In 2015, Vladimir Putin's number one public enemy, Boris Nemtsov, was shot and killed in front of the Kremlin. He was a relentless critic of Putin, corruption, and war in Ukraine. Then he was assassinated. I'm Ben Rhodes, writer and co-host of Pod Save the World, and I'm teaming up with Boris's daughter, journalist Zhanna Nemsova, to tell his story in Crooked Media's new podcast, Another Russia.

Together, we uncover what happened to one family and an entire country and ask whether another Russia is possible. New episodes every Monday. Listen and subscribe wherever you get your podcasts. Mr. Chief Justice, I please report. episodes every Monday. Listen and subscribe wherever you get your podcasts. Not elegantly, but with unmistakable clarity, she said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. And I'm Leah Littman.

And I'm Kate Shaw. And listeners, it's here. It's officially sad girl autumn at the Supreme Court. This week, the court will hear Dobbs versus Jackson Women's Health Organization, the frontal challenge to Roe versus Wade and Planned Parenthood versus Casey. So if we sound depressed and down, that might be why. And the court also has some other real doozies on its docket, too. So we'll preview some of what is going to happen this week. But first, some sad girl autumn updates slash reflections. As we noted slash I noted on a previous episode, we canceled Georgetown Law's Marty Liederman because he referred on Twitter to Taylor Swift's 10-minute version of All Too Well as, quote,

mediocre. Well, we changed some hearts and minds, people. Or maybe it was Taylor herself. Anyways, Marty acknowledged on Twitter that Taylor, quote, completely won me over on the 10-minute version with that intense, thrilling Saturday Night Live performance of the 10-minute version of All Too Well. So now he's uncanceled. Congratulations, Marty. Wait, I'm almost nervous to ask this, but I'm going to ask it anyway. Oh, no.

Am I risking being canceled if I say? No, I love the version, and I thought her performance was incredible. I didn't really like the video behind her. I found it distracting, and honestly, the video was kind of mediocre. Is that- I withdraw the gifts I sent to your house that arrived yesterday, Kate. UPS, consider this notice. Kate, like the scarf imagery, and he's watching her the age disparity the ending where she the woman turns into her and like the audience is crying and like we're the audience it's art

it's art oh and by the way if she doesn't win an Academy Award for that video or another, I will never forget it. She needs an Academy Award because Jake Gyllenhaal doesn't have one. EGOT. That is justice.

She's going to get an EGOT for this. Like, I predict Oscar. We're going to take this to the stage. All of it. Like, can you imagine, like, the Broadway musical version of All Too Well? Yes. And Kate, yes.

Well, I'm running a little cover for Marty here. So I guess I'm stepping into the cancellation spot. Kate, why are you carrying water? I'm not even sure we should uncancel Marty Lederman because it just seems like it took too much to get him to reconsider this. It's the Thanksgiving season. It's the season of giving, you know, Hanukkah, exactly, holiday graciousness. Rehabilitation. I'm in a giving spirit. Everyone can be rehabilitated.

Exactly. Well, I'll work on mine. The song is great. I am not in any way questioning the quality of the song. I just like to listen to it. Again, if I could, I would take back at least one of your gifts. I have nothing to say to you, Kate. Should we just end the podcast here? Yes. In other news about people who have gravely disappointed us, SCOTUS scheduled an opinion announcement day on November 22nd. And people were thinking, of course, they've finally gotten their act together. And they got it together so quickly because they are trying to respond to the emergency in Texas where there hasn't been abortion access in a state that has the second largest population in the country for almost three months now. But ha ha ha, jokes on you suckers. Instead, SCOTUS released a single opinion in Mississippi versus Tennessee,

an original jurisdiction case, about water rights related to the Middle Claiborne aquifer. I feel like Chief Justice Roberts looked at Taylor Swift and was like, that's a stunt queen. I'm going to one-up you. Like, I'm the stunt king in this country. This is stunt king stuff right here. I mean, everyone, like, media was lined up. Everyone was ready for this. And then they were like, how do you feel about aquifers? Wait, so when is the 10-minute version

of Mississippi versus Tennessee? Well, first they've got to line up the short film. I did wonder after this opinion came down whether the chief justice, at least the formal chief justice that is John Roberts, has been downgraded in opinion assignments now that Justice Thomas is the new chief justice on the court. Like a nine nothing original jurisdiction case isn't necessarily what I would have thought the chief justice would write in a sitting that included a case on state secrets, the death penalty, the Tsarnaev case involving the Boston Marathon bomber, and the case about whether a state attorney general can intervene in abortion litigation. Alas, apparently this is his new position on the court. Well, maybe this is his Thanksgiving gift to his colleagues, like the spirit of sharing gratitude, spreading out these really important opinions, giving them to your colleagues who have waited literally decades to decimate

reproductive rights. Like, what could be better? Happy holidays. Or giving the opinion assignment to the only woman who would do so. That's coming, too. We can only hope. But we're getting ahead of ourselves. Yeah.

Anyway, so what do you guys think is prompting this delay? Because I mean, college students can pull all-nighters. Why can they get this together? Why is it taking so long? It's almost like a majority of the court doesn't think the lack of abortion care in Texas is an emergency and that the only real emergency is the threat to their institutional capital or legitimacy or power, in which case, you know, they might as well wait and release the opinion together with Dobbs and say, okay, well, yes, this lawsuit against SBA can go forward so you can lose on the merits and enforce something that is no longer a constitutional right. I mean, that's one possibility. But I just think their behavior in this case really underscores, they don't think the lack of access to abortion care is the emergency or threat here. You know, they didn't stay the case. They require the parties to brief

the case in less time than it has taken them now to decide it. It's just, you know, again, they're completely unbothered by the second most populous state not having abortion care. I mean, one completely unduly optimistic potential take would be that Sam Alito is perfecting his dissent and really taking his time doing it. I mean, he would, you know, I think that even if everyone else was trying to move with urgency. Yeah, like in between exfoliation, in between like exfoliation, he's like, let me work on this dissent. He's workshopping his lines. He wants to like read it aloud, sort of get his, yeah, I mean. Yeah. Microdermabrasion, write a little bit at the descent. Exfoliate, write some descent.

No, but I mean more seriously it does seem to me. Although I don't think that's – That is literally the most optimistic take possible about what is happening here. Yeah. But I do think that more likely that as time passes, it gets less and less likely that there is like a straightforward 6-3-ish win, at least for the clinics, which I think we and many others thought coming out of the argument was the likeliest outcome. And I have to say, the delay also does make me wonder about Justice Sotomayor's lone dissent, remember, right? Like the second time the court declined to enjoin the law, like on October 22nd, when they granted the petitions and set this wildly expedited

schedule, she was the only one who dissented from the refusal to enjoin the law, where in the earlier refusal, the Chief Justice, Breyer, Kagan each wrote separately. And at the time, right, we were like, well, maybe it's because they all think it's going to be a short delay, and they may as well just, you know, kind of hold their fire now. But I wonder whether that is going to have proven to be a mistake. Maybe they did think it was going to be a short delay, but it's really the sort of the squishy middle that's holding this up. So, you know, I'm wondering what Barrett and Kavanaugh, who seemed really receptive to the prospect of closing the ex parte young loophole and just sort of getting this into federal court, even if they weren't necessarily on board for a full-throated endorsement of abortion rights. They wanted at least to get in the door. Maybe they've been

turned. I think the important lesson here is everyone needs to lower their expectations beyond what are already exceedingly low expectations. I mean, the bar is on the floor. Right. Yeah. At this point, by the end of the term, we're going to be in the Earth's molten core for expectations.

Or if you're in New York City, you're in a rat-filled sinkhole. That's what... We don't have to take it to lava just yet. Okay, let's preview what's up in December. And whew, is this going to be a barn burner of a sitting? Up first, not surprisingly, is Dobbs v. Jackson Women's Health Organization. And maybe you've heard us talk about this case previously. But if you haven't, here's a short recap about what this case is about. Dobbs is a challenge to Mississippi HB 1510, which bans abortions more than 15 weeks after a person's last period. It

is also a frontal challenge to Roe v. Wade and Planned Parenthood v. KCM. Let me just back up there for a minute. When this case was first petitioned for certiorari, the ask was relatively modest. Mississippi really only asked the court to consider whether pre-viability abortions were constitutional. But then when it offered its first brief to the court, and this was in 2021, the certain petition was in 2019, Mississippi had suddenly gotten emboldened, and they asked the court explicitly to overrule Planned Parenthood and Roe. What changed in the interim, Leah? Any ideas? Certainly nothing relevant, and it wouldn't have mattered at all that Justice Ginsburg is replaced by Justice Barrett since politics have nothing to

do with the Supreme Court and the justices aren't partisan hacks or political. So it can't be that. Yeah, it can't be that. Although I will say the timing does check out. 2019, this is a nothing burger. You guys can decide this in your sleeve. 2020, Justice Ginsburg dies. Justice Barrett goes on the court. 2021, destroy it all. Definitely a coincidence, though. For sure. To be clear, Roe v. Wade is a Supreme Court decision from 1973 that held the constitutional right to privacy that had previously been recognized in Griswold v. Connecticut and Eisenstadt v. Baird, two cases about birth control, was actually broad enough to go beyond contraception to also encompass a woman's decision to end a pregnancy via an abortion.

So another beat or two on the history. So Roe was a 7-2 decision, and it was actually not especially divisive initially. The day it was announced didn't even make the front page of the major papers because Lyndon Johnson died, former president, and that took up all the news. Like it was sort of relegated to the back page. And, you know, sort of to that point, Justice Stevens always enjoyed recounting how at his 1975 confirmation hearings, he was not asked a single question about Roe, which had been decided two years earlier. It just wasn't a hugely salient issue. But in the years that followed, the kind of continuation of political realignment and mobilization that actually predated Roe resulted increasingly in a focused and powerful mobilization against abortion and against Roe specifically. So after several appointments by Republican presidents in 1992, the Supreme Court was formally asked to overrule Roe in Planned Parenthood versus Casey. In that case, this time by a 5-4 vote,

the court rejected the call to overrule Roe, relying on the doctrine of stare decisis, right? The idea that some special justification is required to overrule a prior case, that it is central to stability and to the rule of law, that justices not be able to decide every new case as if writing on a blank slate. So Casey reaffirmed the core holding of Roe, which it described as the right to decide to terminate a pregnancy prior to viability, that is prior to the point at which a fetus could survive outside the womb. And Casey held that states could not take away from women the ultimate decision about

whether to have an abortion prior to viability. But Casey also held that short of taking away that ultimate decision, that is short of, you know, prohibiting a woman from having a pre-viability abortion, states could regulate abortion so long as those regulations did not impose what the decision described as an undue burden on women seeking access to pre-viability abortion. And the court explained that an undue burden is a restriction that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking to access abortion, again, prior to viability. So that's Roe and Casey.

And that brings us to the Mississippi case. Mississippi has concededly prohibited some pre-viability abortions because a fetus will not be viable at 15 weeks from a person's last period. Because Mississippi has done exactly what Roe and Casey held that states cannot do, Mississippi is pressing two arguments, both of which would make dramatic changes to the law governing abortion. First, Mississippi is asking the court to overrule Roe and Casey, hashtag YOLO, and hold that because the Constitution does not protect a person's decision to end their pregnancy via an abortion, abortion restrictions are subject only to the most deferential form of judicial review and are therefore almost always going to be constitutional. But Mississippi has another arrow in its quiver.

Second, and alternatively, it asks the court to overrule part of Roe and Casey, specifically the viability line. As Kate noted, Roe and Casey held that states cannot prohibit people from making the ultimate decision about whether to have an abortion before viability, but they can do so after viability. Mississippi asks the court to erase that line and hold that states can prohibit individuals from deciding to have an abortion before viability, and indeed at any stage of pregnancy. As we've said many times on this podcast, this argument would necessarily raise the question, well, how long before viability could a state prohibit abortions? Four weeks after a person's last period? Six weeks? States have enacted myriad restrictions, necessarily raise the question, well, how long before viability could a state prohibit abortions? Four weeks after a person's last period? Six weeks? States have enacted myriad restrictions ranging from six to 20 weeks after a person's last period as the point at which abortions are

prohibited. And if the court chooses to go down that path, erasing the viability line, that would open up all of these laws to relitigation, which would have drastic effects on abortion access on the ground in the meantime. So before we go full sad girl autumn, or maybe just to begin sad girl autumn, we can survey some of the amicus briefs that were filed in Dobbs. So there are a number of notable amicus briefs supporting Mississippi. The total is north of 80 amicus briefs, in fact. We previously flagged the amicus brief by Jonathan Mitchell, a.k.a. the architect of SBA, also known by Elena Kagan as some genius, and Adam Mortara, where they urged the court to not only overrule Roe and Casey, but hashtag YOLO, leave the other decisions that are important hanging by a thread as well.

So these decisions include Griswold v. Connecticut, the one that opened up the whole question of a right to privacy by allowing married couples to use contraception. There's also Obergefell v. Hodges, which they invite the court to reconsider. That one legalized gay marriage. And then they also invite the court to reconsider. That one legalized gay marriage. And then they also invite the court to reconsider Lawrence versus Texas. That's the one that decriminalized same-sex sodomy. So basically, this entire brief is arguing that we should just go all the way back

to 1960 and no one should have any kind of sexual privacy or any kind of rights to freedom in their intimate lives. So good times. But meaningfully, Mitchell and Mortara also argue that in a post-Roe world, women, because they care about you ladies, would still have control over their reproductive lives. How would that work, Adam, Jonathan, you ask? Well, these geniuses tell us that we could either abstain from having sex, awesome, or we could travel to another state to have an abortion. These guys are such –

Road trips, road trips, guys. I mean, ladies, ladies, what gentlemen? What absolute gentlemen? Ladies, is it feminist to encourage road tripping. I mean, like, it's just, you know, I a part of me really wants Elena Gagan at oral argument to be like, well, some geniuses argue that women could still control their reproductive lives by abstaining from sex. I'm full on for the Lysistrata, but not for this. But thank you, fellas. Try again. So there is also a brief from the insurrectionists, Josh Hawley and Ted Cruz, as well as one of their colleagues, fellow traveler Mike Lee. This brief argues that the court should overrule Casey because the decision is unworkable. 75 women injured by second and third trimester late term abortions, even though, of course, right, states can restrict third trimester abortions.

And this case and the future of Roe have nothing to do with it. But we've alluded to this previously on the show. But in Gonzalez versus Carhartt, in the course of upholding a federal law prohibiting a particular method of second trimester abortions, the court, in an opinion by Justice Kennedy, wrote, quote, While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained severe depression and loss of esteem can follow. And ever since that line, these amicus briefs have become something of a cottage industry slash regular appearance in the court's reproductive rights cases. We should also highlight some notable amicus briefs for the clinics on the other side. That's

a significant number, north of 50, but actually, as I counted them this morning, many fewer on this side than on the side of the state. Okay. So first one we wanted to highlight. Wait, wait, wait. But Kate, is that because I think a bunch of these briefs are a lot of different organizations joining us? I think that's right. Yeah. And there's a lot of duplication on the state side.

I think that on the clinic side, there was an effort at sort of doing kind of keeping things a little tight and efficient, but sort of raw counting. There are more, but I don't overplay the significance of that. That's an important point. Okay. So of the notable amicus briefs on the side of the clinics, one by the Lawyers Committee for Civil Rights and the Leadership Conference for Civil and Human Rights discusses how state policies limiting access to sex education, contraception, reproductive health care,

all contribute to the reliance on abortion among lower income women and black women. Their brief also highlights how restrictive abortion laws and efforts to eliminate Roe have increased reliance on the viability line. There is a brief filed by the Howard University School of Law Human Civil Rights Clinic filed by strict scrutiny guest Tiffany Wright. This brief also focuses on how black women have been denied bodily autonomy and reproductive freedom. We wanted to flag these briefs in particular, given that, as Melissa's article Racing Roe highlighted, the campaign against Roe and Casey and for abortion restrictions has taken on a racial equity angle with anti-abortion advocates insisting on or depicting abortion providers, women obtaining abortions as tools of or instigators of racial genocide.

We should also note that a number of the top side briefs for the other side also reiterate this idea of abortion as eugenics and racial genocide as well. So like this is becoming much more widespread than it once was. So it definitely has legs. And Melissa, your work is at the center of all this. I'm so curious what you guys think. I've been puzzling over whether I'm, you know, so this case is going to be argued in an era in which Justice Thomas for the first time is an active participant in oral arguments and has been asking the first question. Will he surface this racial genocide line in his questions, do we think? And is it useful that he will and there will be a chance to sort of ventilate and respond, including I thought the Howard brief was fantastic.

In some ways, I wish it were being argued in an era in which Thomas didn't begin and frame the debate. But I also don't know whether he's going to surface this theory in his questions. I wonder because if he did service it, I think it would be very easy for one of the advocates to sort of come back with the rejoinder. Like, yes, there is a disproportionate incidence of abortion among Black women, but they also happen to be the group that is least likely to have even employment outcomes, who are likely to have a serious gender and race wage gap and poor access to reproductive health. They're also the ones who suffer from an egregiously high maternal mortality rate for a civilized democracy. So I think there'd be a really interesting rejoinder. But I mean, again, the thing I think he loves about inject really interesting rejoinder but I mean again the thing I think

he loves about injecting race and he hasn't really done it in oral arguments as you know Kate but really in his writing but it is I imagine in conference a way to kind of shut down argument by simply saying like hey do you all know what it's like to be a black person in the south with a cross burning on your yard obviously no one else but Clarence Thomas can say yes to that. And there's a way in which that sort of arrests debate. So I could see him do it, but I think there'd be a rejoinder. But maybe it doesn't matter if there was a rejoinder if it's just such a shocking moment that it completely captures the whole discussion. I mean, a part of me can imagine him doing it in questioning the state, like asking almost like a friendly question. I could see that.

Do you agree that it would be a special justification for overruling Roe and Casey if we think that abortion is disproportionately used to devalue Black life? But not actually asking, let's say, Solicitor General Prelogger or Julie Rickleman about the veracity of these claims. I could also see it as a way to kind of cultivate a conversation with Amy Coney Barrett, right? Like, you know, to have that conversation with the state for bringing her along. You know, I've said this before, and I think it's really important to sort of acknowledge, like, the identity politics on this court. It's not just, like, that Democratic presidents nominate people of color and that's identity politics. Amy Coney Barrett, I think we can truly say part of the reason she's on this court is she is a woman who is conservative, who is skeptical of abortion rights. She is also the mother of two adopted black children and a child with special needs.

And I think, you know, that whole argument about abortion as eugenics lands in a particular way with her. Yeah, well, so we will obviously be listening extremely closely to the questions that she poses. In the vein of briefs supporting the clinics, I want to highlight briefs that both Melissa and Leah filed. So Melissa filed a terrific brief with Reva Siegel and Serena Mayeri, kind of grounding the right to terminate a pregnancy fully in equal protection principles. It is a great brief. And I actually want for common law two students in particular who are kind of like gearing up for finals right now, it is a great review of the kind of basics of constitutional sex equality principles. So seriously, go read that amicus brief. And Leah has a terrific brief along with other scholars of constitutional law

arguing that both that abortion is a fundamental right and that stare decisis principles require adhering to Roe and Casey. And then finally, I just wanted to flag a brief by some procedure scholars, including friend of the pod, Marin Levy, that argues that because, you know, a little bit recalls the history that Melissa was walking through at the beginning of the podcast, which is that the petition in this case, again, filed when the court looked very different, right, before Justice Ginsburg died and was replaced by Justice Barrett, that petition didn't ask the court to revisit Roe and Casey. And for that reason, the court should dismiss the case as improvidently granted. And I just think it's kind of a helpful reminder of the history here, right, that this case did not start with such a

request. And there is an argument that the court should take up this question in the context in which it, you know, a petition is filed squarely presenting it as opposed to morphs along the way because of change composition on the court to include this huge constitutional request of the court. All right. So what are we looking for at oral arguments on December 1st? First, let me just say that this is going to be the one argument that perhaps may actually save the Supreme Court's abysmal gender equity and oral argument record. Julie Rickleman of the Center for Reproductive Rights, she is the lawyer who successfully argued June Medical Services, is back before the court arguing again for the clinic. She is joined by Solicitor General Elizabeth Prelogar, who is

arguing as an amicus for the United States in support of the clinics. And I'm just going to say right now, I have every expectation that they will be absolutely remarkable. Totally agree. Also wanted to make a bold prediction that our boy Sam is going to get a little chippy and let's say defensive along any or all of the following lines. One is to the extent calls to the court's legitimacy come up at all. He will echo a point he has often made in stare decisis cases that, you know, being right and admitting mistakes is actually an important part of the court's legitimacy. I just I feel like that's gonna happen also think he's gonna have some betty frito-lito vibes and you know insist that he's really concerned about the harm to women from abortion frito-lito oh

i mean again like this is so bleak. The Alito Mystique. The Alito Mystique. The prospect of the court hearing Dobbs and what they are going to do is just so depressing. I'm sorry, I need to refer to Betty Fried Alito and the Alito Mystique because otherwise I will just crawl into bed, swaddle myself in a blanket and never get out because this is a coping mechanism anyways. So I just foresee that happening as well. I also think he's probably going to make clear that he too is an ally of black women. And I think he will note those briefs that discuss the deleterious impact of abortion and the high incidence of abortion among black women, because he cares. He cares. So we have Betty Fritolito. And when you said that, Melissa, Paulito Murray, just like.

Oh, gosh. That is so. I mean, it's a horrible mashup. I'm sorry to the spirit of Pauli Murray. Is that right? Should I have not already cut this? Pauli Murray, we are so sorry for what the world has become. Polly just had a birthday. I don't think that was what we needed to give

Polly as a gift. The nickname. I'm sorry. I'm sorry. I take it back. Way to go, Kate. Kate, you're canceled. I'm sorry.

You're canceled. I'm canceled again. Second cancellation of the pod. This is what Justice Alito says about cancel culture. We're doing it right here all the time. We're proving him right.

Liberals canceling things left and right, drinking lattes, cancel culture. We're doing it right here all the time. We're proving him right. Liberals canceling things left and right, drinking lattes, canceling. That's what we do. That's right. Okay. But back to a few more sort of thoughts, things to watch for at oral arguments. I am going to be really interested in how much we're going to hear about the state's interest in protecting unborn life, right? And kind of whether and how that could shade into broader arguments about fetal personhood, right? Youhood. As we have talked about on the podcast, for many anti-abortion activists, the end game here is not just to overturn Roe and Casey, which would allow but not require states to prohibit abortion, but to have the court eventually hold that the Constitution protects a fetus's right to life, which would presumably outlaw abortion nationwide, and how much seating of the ground for that

ultimate effort we're going to see during this oral argument. There is not much in the marriage spree. So I think they're actually pretty cautious. But and I haven't been through the 80 plus. Cautious. On that quote. This is over. This is over it in window. But about revealing that ultimate objective. You're right. I mean, it's kind of insane to even call it this bold effort cautious. We would be remiss if we didn't note that a lot of men's are getting, some might say, a little hysterical about what the court might do in this case. Specifically, they seem to have worked themselves into a frenzy over the prospect that the court might not completely overrule Roe and Casey. So here's what I am talking about. An academic posted a message that is

supposedly from a current third-year law student who's an officer in the Federalist Society, and this student supposedly complained that, quote, conservatism won't even defend itself, why should I defend it? And that, quote, FedSoc judging, if I can call it that, seems to be largely a radical form of judicial deference and abstention. To which I say, radical deference, have you met the Fifth Circuit or read the Supreme Court's decisions last term? Anyways, this Federal Society officer apparently threatened to not be an originalist anymore if the courts didn't overrule Roe. The student supposedly wrote, quote, I feel like I'll be forced kicking and screaming to give theories like common good, constitutionalism, a real hard look. Anyways, the professor to whom this message was written, I know it's like, I'm gonna go play with someone else. But the professor to whom this message was

written has been sounding this theme for a while, the idea that originalism is for nothing, if he doesn't get what he wants, and what he wants is to overrule Roe. So he writes menacingly, there are many, many consequences for originalism. If Dobbs reaffirms Roe and Casey, Dobbs could severely wound the movement I care very deeply about. The failure to overrule Roe could have cataclysmic effects on the conservative legal movement. This is similar to what we heard from Josh Hawley in the wake of Vostok, who took to the Senate floor and called Vostok the decision finding that discrimination on the wake of Bostock, who took to the Senate floor and called Bostock the decision finding

that discrimination on the basis of sexual orientation was prohibited under the federal civil rights statute. He declared that decision the end of the conservative legal movement and openly wondered what the value of textualism and originalism were, if it could lead to results like Bostock, almost like these methodologies are just fig leaves for results. This naturally prompted a response, that is the arguments about Dobbs, from some other men being like, no, originalism is and would be just fine, even if the justices don't overrule Roe. And just watching this from afar, I wanted to know, are the men's okay? Like, I would have thought that the prospect of a bunch of white dudes debating the meaning of Dobbs

for their largely white, largely male lawyer friends was satire. It's not. Like, this is really happening. So I don't know if the men's are okay, Leah, but I will note, and I appreciate you noting that this isn't about all the men's. So yeah, like, so some of my best friends are men.

So, you know, some other thoughts. We should, I think, note the likelihood of the interaction between this case and the SB8 challenges. And, you know, I don't know that we'll hear a lot about it. I think we likely will hear something about it at oral argument. But this is assuming the court does not act on SB8 prior to Wednesday. I think we can assume they're not going to do that, Kate. I mean, again, like, let me just like sort of pipe up with my opt. Is there no possibility? So we're recording on Tuesday. Of course, there's some possibility that they do that. They come back from Thanksgiving break, Kate, and they just like burn the midnight oil and get something done on Monday and Tuesday. Okay, when you put it like that, it sounds unlikely.

Yeah, I think it's pretty unlikely. Unless they want to do something from the bench on Wednesday, like before, I mean. Oh, that would be some stunt queen stuff right before the Dobbs oral argument. I don't know. Here's a less optimistic take. Maybe some number of justices actually want to hold the SB8 case where they will say the litigation can proceed against SB8 for the time when they are going to issue Dobbs and either overrule Roe and Casey entirely or erase the viability line. And thus the pair of decisions will be portrayed as the compromised. So that's a possibility. Again, I don't think they intentionally or could get every justice to agree to schedule the decisions in that way. But it's clear they

just don't view SB8 as an emergency. Actually, I think it'd be really dangerous for it to be scheduled and framed in a way that makes it look like there is some kind of compromise. Because even the compromise is garbage, right? Oh, yeah. No, it's garbage. But from the perspective of justices who want to do away with abortion rights as fast as possible, that would give them some cover. Which is why I think, again, the liberals on the court, the three liberals, I mean, like do not give them cover. Like do it out in the open or don't do it at all. Like don't play along with these reindeer games. Anyway, Shannon Brewer, who is the director of Jackson Women's Health Organization, this is the clinic that was challenging HB 1510, says that roughly a fourth

of the clinic's patients are Texans who have traveled to Mississippi seeking abortion care. And they have to spend the night because Mississippi has a 24-hour informed consent waiting period. So they can't just get the care they need and leave. They have to spend the night there. And I think this is the scenario in a lot of the surrounding area. Like in Oklahoma, Arkansas, they're all seeing a huge uptick in demand from Texas. And it's really interesting that abortion access in Mississippi is severely, severely compromised.

Jackson's Women's Health Organization is, I think, the lone clinic in the state. And it is basically inundated by these reproductive refugees from Texas. Yeah. So the cases interact in a very practical, on the ground way, in addition to the sort of conceptual way we were just talking about. So, okay. So that is obviously sort of a huge event

for the week after Thanksgiving, but there are other big cases that we should flag. Maybe the first we'll mention is Becerra versus Empire Health Foundation, which is a case involving a dispute over how to calculate certain Medicare payments at hospitals that serve significant numbers of low-income patients. So the federal Medicare statute provides that hospitals

that serve a disproportionate number of low-income patients are eligible for what is known as a disproportionate share hospital adjustment. And the question in the case is how to calculate that adjustment. So the Medicare statute provides that this percentage will be based on the sum of two fractions, the Medicare and the Medicaid fraction. And at issue here is how to calculate the Medicare fraction. And more specifically, the dispute is over whether the phrase patients entitled to benefits under Medicare Part A encompasses individuals who satisfied the statutory criteria to be entitled to Medicare at the time the hospital treated them, but for whose treatment the Medicare program was for some reason not required to pay. Like for example, they exceeded the number of days for which Medicare will cover a hospital stay.

Okay, so in 2005, HHS promulgated a rule providing that such individuals should be counted in the Medicare fraction. Valley Hospital Medical Center operated an acute care hospital that participated as a provider in the Medicare program. It wasn't happy with its total reimbursement rate in 2008, so it sued, arguing that Health and Human Services' interpretation of the statutory provision in its rule is inconsistent with the text of the act. The Ninth Circuit agreed and set aside the HHS rule as conflicting with an earlier Ninth Circuit interpretation

of the phrase entitled to Medicare. So in this case, the federal government mostly argues that the rule represents the best reading of the text of the statute read in light of context, structure, history, and purpose. It also makes the argument that at a minimum, the HHS secretary's interpretation of the statute is reasonable and entitled to deference under the Supreme Court's decision and doctrine known as Chevron. Chevron is the doctrine that says if a statute is ambiguous and Congress has given an agency the authority to administer the statute,

the agency's reasonable interpretations of an ambiguous statute are entitled to deference. But it's clear that the federal government does not want this case to give the Supreme Court an opportunity to gut Chevron and agencies' ability to administer and interpret the statutes they administer. So the federal government really wants this case to be argued on the terrain of the best reading of the statute, the hospitals challenging the federal government's interpretation. That's Valley Hospital Medical Center in the background, Kate, coming to oral argument. They're pulling up right now. I feel like the combination of Dobbs, the challenge to Chevron, and the case we're going to get to next has just created a state

of emergency in the country. The sirens will be going off 24-7. Exactly. From now until like basically forever. These sirens are symbolic and they will be featured in every episode henceforth. I thought the sirens really still are going. It's an emergency. It's an emergency. This is the world we live in now. It is. So it could be, right? There are definitely justices on this court who are gunning for Chevron. And I think just the question at oral argument will be how central Chevron is to the case. I mean, the federal government is not completely evading Chevron. It says that it very much has as a fallback argument that its interpretation is reasonable. But I just, I feel like Gorsuch is going to be just unbearable in this argument. I just like have a strong feeling he's both going to be unbearable in trying to make this case just about Chevron, but also simultaneously in, you know, I think his likely insistence that we sort

of parse this, you know, two word phrase entitled to kind of completely short of its context and, you know, larger statutory scheme purpose, to, kind of completely short of its context and, you know, larger statutory scheme purpose, all of the things the federal government argues supports, it's, you know, the rule that HHS promulgated. And I also think it's going to, like, accuse HHS of lots of dodgy behavior, which these hospitals do accuse HHS of. And I think Gorsuch just loves to pile on to administrative agencies any chance he has. So anyway, I predict a lot of like, oh my God, Gorsuch out-Gorsuching himself at this he has. So anyway, I predict a lot of like, oh my God, Gorsuch out Gorsuching himself at this oral argument. So I feel like we might need to have Richejean like on speed dial. Yeah. Neil Gorsuch is going to be Neil that

guy Gorsuch during the oral argument. And oh gosh. Oof. Can't wait. Okay. So that's the first case involving HHS that will be argued this week on Monday the 29th. Then on Tuesday the 30th, the court will hear another challenge involving HHS and hospital reimbursement, American Hospital Association v. Becerra. At issue here isn't an HHS rule, but rather HHS's setting of reimbursement rates. This case involves not hospital stays, but prescription drug reimbursement, which means not Medicare Part A, but Medicare Part B. There are a couple of statutes in the mix here, the Medicare Modernization Act of 2003 and the Public Health Service Act. So basically, in the 2003 Medicare law, Congress

changed the way Medicare reimbursed hospitals for certain outpatient drugs. The federal government says the statute provides two ways for HHS to set reimbursement rates, either based on cost survey data or, in the absence of such data, based on other ways to determine the cost of the drug that year. Starting in 2018, HHS adjusted downward the reimbursement rate for some drugs acquired by hospitals at substantial discounts through Section 340B of the Public Health Service Act. So those hospitals have brought this challenge to the adjustment, arguing that the statute does not permit HHS to make the adjustment in the way that it did. HHS won in the D.C. Circuit with the court finding that the agency had permissibly exercised the authority Congress delegated to it to set reimbursement rates, and the hospitals are

seeking review here. So like the Empire Health case, the federal government argues that the best reading of the statutory provision supports HHS's reading, and it also offers Chevron as kind of a fallback argument. Basically, if the statute is ambiguous, the agency interpretation was reasonable. They also argue, as they did below, that judicial review is actually not available at all. So there is generally a presumption of judicial review of agency action under the Administrative Procedure Act, but Congress can, by statute, preclude such review, and the federal government says that's what Congress has done here. The AHA naturally disagrees, says judicial review is available, and that HHS has acted contrary to the statute.

So this case also contains a Chevron question, right, whether HHS is entitled to Chevron deference in its setting of reimbursement rates, where it hasn't collected hospital acquisition cost survey data, but it's not clear the court needs to reach that question. The hospitals are being represented by former Solicitor General Don Verrilli. And I have to say, I expect similar Gorsuch energy in this case as in the case that'll be argued the day before. So if that weren't enough, the December sitting also includes another case I wanted to highlight, even though it's being argued the second week of December, and that is Shin versus Ramirez. So Shin versus Ramirez is, in my opinion, another kind of bellwether case for how extreme this court might prove to be.

The case threatens a core mechanism for enforcing constitutional rights, including the right to the effective assistance of trial counsel, you know, a super important constitutional right, but many other rights as well. And it specifically concerns a prior Supreme Court decision, Martinez versus Ryan, a 7-2 decision from 2012. Martinez established an important rule that now provides an important mechanism to enforce the constitutional right to have an effective attorney at trial. You can think about it this way. If you have an attorney who is constitutionally ineffective at your criminal trial, when are you supposed to raise the argument that your trial lawyer was constitutionally ineffective

and your Sixth Amendment right to counsel was violated? You can't raise it at trial while you're being represented by that ineffective lawyer. You often can't raise it on appeal either, since evidence that your trial lawyer was ineffective will often be evidence outside of the trial record, that is, evidence your lawyer didn't uncover. And appeals are supposed to be limited to evidence at trial, that is, the trial record. So the first time to argue that your trial lawyer was ineffective is often state post-conviction proceedings, the proceedings that occur in state court after your state trial and after your state

appeals. But here's the rub. The Supreme Court has said you generally don't have a constitutional right to a lawyer in state post-conviction proceedings. And that means you might not have a lawyer in your post-conviction proceedings, which are the first opportunity to argue that your trial lawyer was ineffective. And it means if the state gives you a crappy lawyer in those post-conviction proceedings, you don't have a constitutional claim if that lawyer did a crappy job and failed to argue that your trial lawyer was ineffective and violated your Sixth Amendment rights. That creates a big problem. There may not be a viable forum to raise your argument that you received ineffective assistance of counsel in violation of the Sixth Amendment. argue that your trial lawyer was constitutionally ineffective does not prevent you from raising that argument in federal habeas proceedings challenging your conviction, even though typically your failure to raise an argument in state criminal proceedings prevents you from

raising that argument later on in federal habeas proceedings. And as Martine has recognized, consistent with previous cases, litigation practice, and scholarly commentary, ineffective assistance arguments often depend on evidence that's outside of the record. So this might be evidence that your counsel did not surface or present during your trial, or simply the reasons why your counsel made particular decisions. Note, for example, a recent Supreme Court case overturned a grant of habeas precisely because the habeas petitioner did not have counsel testify about their reasons for making certain decisions. And last, ineffective assistance of counsel

claims are the vehicle for litigants to safeguard their innocence and to enforce their other rights. So why did I suggest this case is a bellwether for how this court might act? So depending what the court does in Shin v. Ramirez, it could gut Martinez v. Ryan. So Martinez held that litigants are not prohibited from raising a claim that their trial counsel was constitutionally ineffective in federal habeas proceedings when, through no fault of their own, they failed to raise that claim in state post-conviction proceedings because the state supplied them with ineffective counsel in the state post-conviction proceedings. Now, in this case, Shin v. Ramirez, Arizona wants the court to say that even though a habeas petitioner is

entitled to have a court hear their ineffective assistance claim, the habeas petitioner is barred from presenting any evidence or facts to support that claim. The state's own brief doesn't bother to explain this disparity. It just insists that Martinez answers a different question than the statutory restrictions on considering new evidence in habeas proceedings. So it says, a prisoner who proves cause and prejudice is merely entitled to have his or her claim heard on the merits. Once Martinez's work is done and a default is excused, the statute governs the evidence the court may consider in reviewing the merits of the claim. But that would completely gut Martinez, as Martinez recognized ineffective assistance claims depend on evidence outside the

record. So if you can't present any evidence, you're never going to win an ineffective assistance claim, and it will be impossible to enforce your right to the effective assistance of trial counsel. It would adopt an interpretation that basically no court of appeals has ever adopted and that no Supreme Court justice so much has even suggested in previous cases on these issues. Martinez versus Ryan, for example, and the follow-on case Trevino versus Thaler. So this would be truly, truly unprecedented. Yes. And just like extreme out there and just really unfortunate.

Again, like it would basically eliminate over half of the matrix for like how ineffective assistance of trial counsel claims are enforced. As we did with Dobbs, I just wanted to highlight some important amicus briefs. So there's a brief by habeas scholars. This is not the brief I was a part of, but it contains an empirical study of Martinez claims and some of the gross miscarriages of justice that Martinez has been used to rectify. There's also a brief by federal defender capital habeas units that describes how the Martinez litigation works on the ground, as well as a brief by bipartisan former DOJ officials and former federal prosecutors just explaining the importance of enforcing the right to the effective assistance of counsel. Maybe for my birthday, I'll do a freestanding episode on Martinez. Oh my god, that sounds amazing. We'll talk about it later. So just a little,

I guess, court culture, coordinate branch culture, if you will. It was really awesome that on November 19th, with very little fanfare except in my own heart, to Vice President Kamala Harris, who became the acting president and indeed Madam acting president for approximately 85 minutes. And wow, they were a great 85 minutes. I really enjoyed them. It was so funny. I also found them so moving. And it's funny, I've written about the 25th Amendment. I am well aware of it. And it just had not occurred to me. We have a female vice president. She's, at some point, if he initiates 25th Amendment procedures. At least once a year.

Right? Is that how often you're supposed to get a colonoscopy at that age? Maybe once a month. I don't know. He is an older worker. It's true. It's true. It's true. I don't know if it's like moving and inspiring or ultimately just awful that we're literally squeezing out, wringing out these moments of joy from a colonoscopy. Totally. Yeah, this is 2021.

This is what we have to work with, guys. Exactly, how routine colonoscopies spark joy. Re-condo, keep it, keep the colonoscopies. Spark joy. Wanted to make one quick note from our discussion on Ramirez v. Collier, the death penalty case we discussed in depth with Professor Lisa Eskow of the University of Texas Law School Supreme Court Clinic. So we noted that there seemed to be some inconsistency in how the Supreme Court treated their religious liberty claim in Ramirez and how it had treated previous religious liberty claims in decisions such as Hobby Lobby v. Burwell, which held that the Affordable Care Act's contraception

mandate violated the Religious Freedom Restoration Act as it was applied to certain employers, as well as the court's previous religious liberty cases on the shadow docket dealing with challenges to coronavirus public health measures. And we said, among other kinds of differential treatment, the court seemed to be more willing to question the sincerity of Mr. Ramirez's religious beliefs than it was to question the religious beliefs of the employers in Hobby Lobby. And some very helpful listeners pointed out that some of the quotes we read suggested that, well, what the court was not willing to do was question whether the rule or regulation was a substantial burden on the religious entities. But my point slash our point that we were trying to convey was simply that the court

was so willing in Hobby Lobby and other cases to believe that the employer's religious beliefs were sincere and so unwilling to question them that it said we're not even going to assess the legal question that the Religious Freedom Restoration Act requires us to answer, namely, whether this law or policy imposes a substantial burden on the employer's religious beliefs. That was a point that Justice Ginsburg criticized the majority in Hobby Lobby for failing to do. The majority was like, well, we can't possibly question whether this does impose a substantial burden on their religious beliefs because they say it does. Yet in Ramirez, where you have someone who is about to die and could possibly be deprived of their ability to hear prayer and be touched by their religious advisor in their final moments,

the court is all of a sudden willing to question the sincerity of their religious beliefs where there wasn't any question that it was a substantial obstacle. So again, it's just kind of a troubling disparity in when they are willing to question and when they are willing to kind of look for ways for why a religious claim shouldn't succeed. Wanted to add that clarification there. Thank you to those who wrote in. We appreciate you pushing us to make our points more clear and right, which they are. Yes. Sometimes it is just, you know, you listen to those oral arguments, and it's just so bleak that putting the exact refinement on the many ways in which it is galling can be a struggle. But this is why I feel like maybe we

should hire Kyle Bragg so he can put out more effective press statements from us. Keep our names out of your mouths like that, right? Right. Like, I need Kyle Bragg to kind of formulate the effective criticism of Justice Aligo's ignorant and hypocritical statements on religious liberty. So there's a job offer. But seriously, for those of you who did write in, thank you very much. And we're happy to make clear what might have been muddled. And so we appreciate the engagement. Thank you. Last point we wanted to make for the argument sitting that is coming up. There are 23 lawyers arguing.

Only five are women. Two, as we highlighted earlier in the show, are arguing against the Mississippi abortion law and Dobbs, Julie Rickleman, and Elizabeth P. Lager. Those are bleak numbers. We need to do better. It's better. I mean, again, the bar is on the floor. But this is actually an improvement. Five of 23.

Isn't it better than previous ones? Yeah. I mean, it's almost 20%. I mean, like, Kate, where is your optimism? You're usually the ones like, come on, guys. It's not so terrible. We're not getting handmade robes. It's over 20%. It's over 20%.

Yeah. Oh, never mind. Oh, man. OK. It's done. Yeah. Feminism has succeeded. Representation has been achieved.

Feminism has succeeded. You've come a long way, baby. You. It's done. Yeah. Feminism has succeeded. Representation has been achieved. Feminism has succeeded. You've come a long way, baby. You've come a long way. It's the work of Betty Friedan, Betty Frito-Lito, and Paulito Murray. Their combined efforts have gotten us to where we are. It's intersectional, y'all. On that auspicious note, we would like to thank our wonderful producer, Melody Rowell. Thanks to Eddie Cooper for making our music. Thanks to all of you for listening. If you'd like to sign up to support the show, you can do so, can we humbly suggest some strict scrutiny merchandise available on our website, strictscrutinypodcast.com.