Strict Scrutiny - Sausage Fest

Episode Date: April 5, 2021

“Live” from Yale Law’s ACS chapter, Leah and Kate recap the end of the March sitting, break down recent opinions, and kvell over some court culture -- the first batch of judicial nominees from the Biden administration! Follow us on Instagram, Twitter, Threads, and Bluesky

Or Lisa, Leah, what did you think of those kinds of lines of questioning? Are you confusing me with Lisa Blatt? I know we're very similar. This is us, like the high degree of verisimilitude for you listening now and watching in person is that like sometimes we just like say weird stuff and the melody just cleans us up. So Leah, my host whose name I definitely know, what did you think about this? Welcome to a very special episode of Strict Scrutiny. We are your hosts. I'm Leah Lippman. And I'm Kate Shaw. And today we're coming to you live or, you know,

as live as we can today from Yale Law School at a taping hosted by the American Constitution Society. So thanks so much to Jake and to the chapter for inviting us to do the show with you all. So today we have a pretty jam-packed episode. As always, we will cover some Supreme Court related news. We have a few grants as well as opinions to cover. Then we will do the recaps from the last week of arguments in the March session. And finally, we have some court culture. And it's a good one because, spoiler, we finally have some judicial nominations. And we are very excited about them. So we will make sure to leave enough time for all of our thoughts there.

First, the news, though. The court decided another case on the death penalty shadow docket. Here, it was a summary reversal reinstating the death penalty in a Tennessee murder case. Justice Sotomayor noted her dissent, but she didn't actually write a dissent. The case was Mays v. Hines, in which the Supreme Court said the Sixth Circuit wrongfully concluded the defendant received ineffective assistance of counsel when the defendant's lawyer did bring out at trial that the state's witness, who had found the body, lied about his reason for being at the motel. The witness was having an affair,

although not with the victim. We also wanted to flag a note that appeared on the order list in another death penalty case. So this is in a case called Johnson v. Precite, which is a case in which a Missouri death row inmate is represented by Ginger Anders, who is a special guest on last week's episode with Melissa, which is a Melissa was unable to be here today. And we always miss her and we will do our best in her absence. So in the Johnson case, so the Supreme Court hasn't decided yet whether to take the case, although it is relisted something like seven times. The background here is that part of the court's Eighth Amendment jurisprudence requires a death row inmate who is challenging a state's execution protocol as cruel and unusual to identify a specific way that the state could carry out the death penalty that would not be cruel and unusual. So in this case, death row inmate Ernest Johnson is challenging Missouri's

lethal injection protocol. He initially requested nitrogen gas. He was unsuccessful, and he's now seeking to offer up the alternative of execution via firing squad. And it sounds ghastly, and it is, but there is an argument that some justices have alluded to that firing squads may actually be more humane methods of execution than the lethal injection protocols that many states use, that firing squad executions would be near instant, less likely to result in horribly botched executions. And I guess some of the justices want to know whether in light of the district court's resolution here, this particular inmate and death row inmates in general could still request to be executed by firing squad. So the court has basically asked the parties to file supplemental briefs addressing the question that given the district court dismissed without prejudice this nitrogen gas request, would the petitioner be barred from filing a new complaint that proposes the firing squad? So we will keep an eye on that. And one thing that, you know, execution by firing squad does

is it kind of exposes in a very like public and transparent way, you know, the ghastly nature of capital punishment, whereas I think execution by drug protocol can make the entire affair seem a little bit less troublesome and more seamless than perhaps it actually is. And that, you know, in Bays versus Reese in 2008, right, that was one of the claims brought by the individual challenging the protocol at issue there, which was that using these three drugs, in particular, the first of these, the paralytic agent, really is about trying to create this illusion of kind of calm, serene death that in fact may mask profound agony that is just not visible and that's somehow bringing to the surface the nature of what is being done, right, in the

name of and at the hands of the state, that maybe there would be some social value in that. So I actually think, although it sounds totally insane that the court would even be entertaining this, you sort of dig down a little bit. And actually, there is some logic to it. So I will be curious to see both what the filings say and what the court does with the supplemental briefs. So there was what I think is a troubling grant in Cameron versus EMW Women's Health Center. So this will be the first abortion case that the Supreme Court hears for argument since Justice

Ginsburg's passing and Justice Barrett's confirmation. And it involves what seems like a wonky procedural issue about the right to intervene on appeal in litigation. But I think the facts or the procedural history of the case, when juxtaposed against some recent signals from the court's abortion jurisprudence, raised some red flags, at least for me. So the case involves a challenge to a Kentucky law that prohibited a particular abortion procedure. And the plaintiffs say, given how the law is worded, that it actually prohibits the most common method of second trimester

abortions, D&Es. The plaintiff sued and named several defendants when they sought to enjoin the law, including the Kentucky Secretary of Health and the Kentucky Attorney General. But the Attorney General agreed to be dismissed from the case and to be bound by the court's ruling in the litigation. So now fast forward, you know, a few months, the case is in the Court of Appeals after the district court concluded that the law was indeed unconstitutional. And there is an election in Kentucky. The former Kentucky Attorney General is elected governor. Governor Beshear has said he is pro-choice and the new Attorney General Daniel Cameron is decidedly not pro-choice. So a few more months pass. The Court of Appeals now issues its decision

saying that this Kentucky law is indeed unconstitutional. And the new Kentucky Attorney General, Cameron, now files a motion to intervene in the case, again, after the Court of Appeals has concluded that the law is unconstitutional. And he wants to intervene in the case to press an argument that the Kentucky Secretary of State had noted but elected to forego onso, and that a majority of the Supreme Court, an actual majority with the chief justice joining the then four liberal justices in Justice Breyer's opinion that they rejected. So the Court of Appeals, looking at all the facts, denies this motion to intervene as untimely. In general, interventions on appeal are disfavored. This case had already been decided. The state elected not to pursue this argument with zeal. It could have prejudiced the other party to relitigate the case

after it had been decided. The attorney general could have decided to intervene before the case was decided. The attorney general had agreed to be dismissed and bound by the ruling, so on and so forth, right? So this doesn't look like the kind of case in which the Supreme Court would ordinarily intervene. There's also no circuit split. There's no question about what the law or legal standard is on interventions on appeal. It's a multi-factor analysis under the federal rules of appellate procedure. And so like the denial of a pretty clearly untimely intervention is not usually something the Supreme Court would review. And so, you know, to me, this kind of signals that the court is going to expand, you know, state's ability to defend abortion restrictions under the guise of this like nominally facially

neutral rule about interventions on appeal, at the same time that there might be renewed interest in restricting abortion providers' ability to challenge abortion restrictions. You know, again, back in June Medical, Justices Thomas, Gorsuch, and Alito all would have said that abortion providers can't challenge abortion restrictions that apply to them and could send them to jail. Justice Kavanaugh didn't take a position. Justice Ginsburg is no longer on the court and Justice Barrett is. So this just has all the makings of, you know, a wonky procedural ruling that could be quite significant in how it affects abortion litigation going forward. I totally agree with all that. Just wanted to flag two more things. could be quite significant in how it affects abortion litigation going forward. Yeah, I totally agree with all that. Just wanted to flag two more things. One is that the court did not grant cert on the second question that the petition presented, and that was whether the decision below should be reconsidered in light of June medical. That, you know, I think together

with the court's continued inaction on a petition that we've mentioned before, which is a petition regarding Mississippi's 15-week abortion ban, seems to me like further evidence that the court is going to take its time and proceed incrementally in changing the constitutional law of abortion. And I think, as you say, Leah, maybe it comes first. You know, in this case, if they do decide that, you know, there should be a second look at the intervention question, I presume they wouldn't reach the substantive question of whether abortion providers, you know providers can challenge these laws at all. But certainly it would set in motion such a challenge below that it could then review. And there are other cases in which the same question will surely come back to the court.

But I think that, you know, trying to sort of nibble away at the edges. Right. You know, just to mix metaphors, we've called abortion, reduced prudence in the near term, something like likely to suffer death by a thousand cuts, you know, I guess pick your metaphor. But I do think that I can well see the court being enthusiastic about a bunch of procedural rulings that make abortion litigation exceedingly difficult or asymmetrically difficult rather than going, you know, kind of in a full bore attack on the substantive right protected in Roe and Casey. So I think that this is further evidence that that's likely the road we are on. And then the second thing I want to say about Kentucky specifically was that, you know, the law at issue was defended by state officials, right? So lawyers from the governor's office and the health department represented the health secretary after the AG got out of the case. And this new attorney general did actually participate in the sixth circuit, just didn't seek to intervene until after the court had ruled. So I actually think this is something that I've written about. I do think that state officials should be able to decline to defend laws under some circumstances that they think are unconstitutional. It obviously depends on the sort of statutory provisions creating the

office of attorney general. In some states, it's a constitutional office. I mean, state law really differs on this. But as a general matter, I think that a lot of states do and should permit these constitutional officers to make their own decisions about laws being unconstitutional. We saw that in the Prop 8 case in California, when the Attorney General declined to defend the constitutionality under the federal constitution of Prop 8. But also that states should provide a way to ensure some kind of judicial review, so that there's not like a musical chairs problem where just the law is frozen wherever, you know, a district court, if it's a district court, has decided it if there's not a proper party to continue the litigation. And sometimes I'm going to like and sometimes I'm not going to like, you know, the decisions made not to defend. But I actually do think that it's a good principle.

And I think that state law just needs to find a way to provide for vigorous representation of positions. And anyway, the point is that that happened here. It's not as though Kentucky was deprived of zealous advocacy, just that the attorney general didn't participate. And so I don't think that vindicating the interests that I just described is something the court needs to do here. The position was defended below. That being said, I'm sure I can write the court's opinion that's about to issue, which is going to be intervening to defend abortion restrictions under any circumstances is in fact necessary to enforce the Voting Rights Act. And we could just end there. Okay, so we got some opinions this week, and then we've got a bunch of arguments to debrief. So let's maybe try to take relatively quickly through the opinions.

The first was in Florida versus Georgia. So this is an original jurisdiction case involving the court's second encounter with a dispute between Florida and Georgia over the Apalachicola-Chattahoochee-Flint River Basin. Basically, Florida is arguing that Georgia is over-consuming water, which is hurting Florida, and in particular, hurting certain oyster fisheries in Florida. The court referred Florida's complaint to a special master, which it typically does in these original jurisdiction cases. The special master wrote a report siding with Georgia. The court here agreed with the special master, dismissed the case. This was a unanimous opinion by Barrett of the sort that probably should have been her first opinion on the court, but for some reason, the non-unanimous FOIA opinion came first. But this was short,

straightforward. I didn't count the days, but like a month or so after argument, it was a remarkably quick opinion. So it made me think that once she really hits her stride, she's going to turn out opinions at a pretty quick pace. So the second opinion that we got was Facebook versus DeGreed. And in this opinion, the court held that Facebook does not count as an automatic telephone dialing system under the Telephone Consumer Protection Act, which prohibits certain abusive telemarketing practices. Basically, the question in the case is whether Facebook texts notifying users of a new account access attempt from an unknown device count as robocalls. Justice Sotomayor, for a unanimous court, concluded that because Facebook's notification system

did not store or produce telephone numbers to be called using a random or sequential number generator, it is not an auto dialer under the statute. The case kind of involved something of or produce telephone numbers to be called using a random or sequential number generator. It is not an auto dialer under the statute. The case kind of involved something of a conflict between two canons of statutory interpretation. On one hand, you had the series qualifier rule. On the other, you had the rule of the last antecedent. And Justice Sotomayor decided that here the series qualifier rule means that in order to fall within the statute, the dialer must use a random or sequential number generator to store or dial. So the series qualifier rule basically says that a modifying clause applies to all of

the preceding nouns or verbs, here the verbs, whereas the rule of the last antecedent says that the last modifying clause sometimes just modifies the word preceding it. Anyways, so between the battle of the canons, you know, the serious qualifier rule went out here. Justice Alito concurred, making a surprisingly reasonable point. And the concurrence said something like, you know, appellate judges spend virtually every working hour speaking, listening to, reading, or writing English prose. You know, canons can help figuring out the meaning of troublesome statutory language. But if they are treated like rigid rules, they can lead us astray. You know, he says basically like no reasonable reader interprets text, you know, using these

rules without making judgments or considering context. And, you know, when I read this, I was thinking, you know, has Justice Alito turned over a new leaf in his 71st year on this earth? Is this an April Fool's joke? His birthday falls on April 1st, which is when the court releases opinion. So, yeah. We have to acknowledge when Sam Alito occasionally strikes an exceedingly reasonable note. And here he did. And he's going to do it again on this episode.

So stay tuned. I was going to say maybe next year, maybe every year on his birthday, he'll give us like a one paragraph. Once a year on April Fool's, right? Just to kind of needle us. Yes. But of course, we can't not criticize an opinion that, you know, not just actually Justice Alito, but Justice Sotomayor wrote. And one thing that was pretty conspicuous, we thought, in the opinion was that it actually relies pretty heavily on treatises and law review articles. And I couldn't help but notice something unifying in the identity of the authors of these written works. Did you notice anything, Leah? Were several of them named Paul? Good guess. Not in this case um but they were all men like there were just so many men cited so you had justice galia and brian garners reading law cited repeatedly uh you know law

professor bill eskridge obviously a giant in the field of statutory interpretation and legislation broadly a piece by lee and mortson possibly in the law journal actually not what i think about it um you know it's like a statutory interpretation sausage fest. Exactly. And I found this especially frustrating because statutory interpretation is a field with a number of incredible women scholars in it. So Yale Law School's own, although I guess now at the White House, but normally Yale Law School's own Abby Gluck, Victoria Nurse, and Anita Krishna Kumar. Anita has actually just gone to Georgetown or will be going to Georgetown in the fall. She is doing some of the most important work in statutory interpretation and is the foremost expert on the canons right now. And I just

found it galling that an entire opinion about dueling canons, which is the title of an article that Anita wrote a couple of years ago, didn't cite any of her work. And unfortunately, that criticism goes not just for Justice Alito, but for Justice Sotomayor, the author of The Majority Opinion. Yeah. So stay tuned for actually a future writing by us that will touch on this issue, kind of citation disparities. But I find this stuff so extremely annoying. You know, I think some of it is, you know, a result of a very like skewed elite perspective among clerks and justices about who counts as an expert. And, you know, that has some like gender dimension to it as well. But it just it irks me to no end. So the next case we got

FCC versus Prometheus was a Kavanaugh opinion for a unanimous court. This was a weirdly unanimous batch of opinions. So Justice Kavanaugh writing for the court finds that the Trump FCC's relaxation of local ownership rules, which had been challenged on the grounds that the FCC had failed to adequately consider the effect of this change on women and minority ownership, was not arbitrary and capricious. So as we discussed when we debriefed the arguments, Ruthann Deutsch argued the hell out of this case in her first oral argument at the court. And although she took a loss on behalf of the broadcasters who were challenging the rule change, I do think this is a pretty narrow win for the government, right, for the FCC, that basically restates what courts have said in other arbitrary and capricious review cases, namely that agency decisions have to be reasonable, they have to be based on evidence, they must be reasonably explained. And it simply finds here there was enough evidence for the FCC to have concluded that changing these rules would not harm minority and women ownership. The court acknowledges there just wasn't much evidence about the likely impact and says the

FCC invited the submission of other evidence, it just didn't get any. It wasn't required to commission new studies but could rely on the existing studies that it had, and that in any event, this was all kind of a reasonable conclusion that it reached. And the court did acknowledge that the FCC had historically considered ownership diversity as a goal to pursue, and nothing in the court's opinion cast doubt on the permissibility of the FCC doing that, despite Justice Thomas raising questions and his concurrence, and that being kind of an undercurrent in the case, although it wasn't explicitly argued before the court. One thing I did notice I wanted to ask you about, Leah, which is a conspicuous lack of citation to New York v. Commerce, right, the Voting Rights Act case.

You know, so that case went unscited in the DACA rescission case. Justice Sotomayor did cite it, but the majority didn't. And unscited here, so these are the two big arbitrary and capricious review cases that follow on to the VRA case. I don't know, do you think the court is sort of approaching this as like a ticket-for-one-ride- only kind of case? I mean, on the one hand, presumably the government conduct there was egregious enough that was, you know, a bare majority of a soon to change court issued that she'll never be spoken of again, except, of course, by us all the time. I mean, citing Department of Commerce versus New York is necessary to enforce the Voting Rights Act. But more seriously, you know, I think that the lack of citation in the DACA case was more surprising to me than the lack of citation in this case. This opinion is written by Justice Kavanaugh, who joined the dissenting opinion, basically accusing the majority of adopting a cockeyed conspiracy theory that no sane person would adopt. So not totally surprising to me that he wouldn't cite that opinion. But I also think more generally, even the majority in

Department of Commerce itself kind of viewed that case as pretty narrow and unique to the circumstances, you know, saying that, look, on this record, it was just impossible slash insane to believe that the only reason that the Department of Commerce added this question was because DOJ really wanted to enforce the Voting Rights Act. And like, that was their justification. And it just absolutely defied any, you know, logical sense about what was happening. Like, this is why it is a running joke. And here, you know, even though I think most people might think that perhaps what was happening is the agency was adopting kind of a change in priorities and like what they valued and what they didn't, that isn't that far afield from their explanation, which is they just didn't think the evidence of ownership diversity was that significant, which, you know, in some ways they're saying, and we basically just

don't value it that much. And in light of like this small evidence, we're not considering it that important. And I don't think that that is as, you know, substantial a departure from, you know, what the agency's stated explanation was versus its actual explanation than in Department of Commerce. So I guess that's kind of what I see is happening here. I think that's a great point. And as you were talking, I was thinking, well, yeah, actually, maybe there's some value in silence as opposed to Kavanaugh doing some minimizing discussion of it that sort of really

does kind of suggest it's just such an outlier case. It's not relevant. So actually, you know, upon reflection, I think like the less said the better. So maybe this is one of those instances. Okay, so should we move on to some of the recaps from the most recent week of arguments? we wanted to recap the argument in is Goldman Sachs versus Arkansas Retirement Fund. Melissa and Ginger previewed this case, which is about securities law class actions, and specifically, when can a securities law case about a company's alleged misstatements proceed as a class action? So for those listeners who might not be law school and class action aficionados, a class action is a case that you are allowed to bring on behalf of

yourself and other people like you. But in order to bring a class action suit, you have to show a bunch of requirements, like your claim is typical of others in the class and your claim is sufficiently similar to those of other people in the class, and so on. The requirements are numerosity, typicality, common questions, predominate, and that the class representative will fairly and adequately represent the interests of the class. Since we're talking about class actions a lot this week, I think it is worth noting that the Roberts Court has been quite hostile to class litigation. In Walmart v. Dukes, it held a big case alleging sex discrimination at Walmart could proceed

as a class action. In Jennings v. Rodriguez, even though the class certification question wasn't presented, the court went out of its way to suggest the Court of Appeal should revisit whether the case should proceed as a class. All of the arbitration cases held that arbitration agreements can't be invalidated on the ground that they preclude class-wide arbitration, so on and so forth. Anyways, in a case decided from another era, Basic v. Levinson, the court addressed the requirement that common issues predominate in a class action in the context of securities law class actions. In securities law, a plaintiff can sue a company in which they invest for a company misstatement if the misstatement is

something that the plaintiff relied on. Now, a plaintiff who is trying to bring a class action case will find it very difficult to prove that every single plaintiff stockholder individually relied on a particular statement. And so BASIC adopted a presumption that plaintiffs rely on a misstatement where the misstatement was public, the stock was traded in an efficient market, and plaintiffs traded in the stock between the date of the misrepresentation and the date that the misrepresentation became public. Now, on the merits, a plaintiff will have to prove the statement was also material. But in a case called Amgen, the court said to get a class certified,

you don't have to establish materiality at that stage. Okay. So basic was a presumption of class-wide reliance on statements. And defendants can rebut presumptions. And so here the question is kind of, well, how can a defendant rebut the presumption, and what happens if they do? So the defendant, Goldman Sachs, is arguing that you can rebut the presumption of reliance if the alleged misstatement was generic. That is, they're arguing that a court can consider the genericness of a statement and concluding that the statement did not lead to reliance. And a second related question is if Goldman rebutted the presumption, does the burden of persuasion proving that the plaintiff didn't rely on the statements remain with the defendant or does it shift back to the plaintiff?

And in a prior case, Halliburton to the court had said that plaintiffs don't have to approve price impact. So that would mean the defendants still bear the burden of persuasion. Okay. That was a lot of wind up, but I feel the need to explain this because otherwise it's hard. I totally agree. And actually, let me just say one thing on generic. I found this a little bit abstract, but in the argument, I think this is an Alito example, the kind of generic statement that he had in mind. He's like, what if a company literally just says, we're a nice company? That kind of statement, is that generic enough to rebut this presumption that something they have said might have had some impact on the price? And that's not the kind of statement that was issued here, but that was an example that I found actually kind of helpful.

Yeah. So at the argument, Justice Breyer came out pretty hot out of the gate wanting to know why the court was even hearing this case. And as I alluded to, you know, he also suggested that maybe the court would do better to write less. I'm not sure what you think. And maybe I'll rebuttal the others. I mean, this seems like an area that the more that I read about it, the less that we write, the better. Part of the difficulty, I think, with this case is that by the time the case got to the Supreme Court, both sides agree in the abstract Second Circuit actually did consider the generic nature of the statements and how generic this statement was and what kind of evidence can it consider in concluding the statement was generic or didn't lead to reliance interests. You know,

does it require expert evidence? Can they rely on common sense? So on and so forth. You know, again, like this issue just seems like kind of weird and that, okay, the Supreme Court is going to write an opinion and what is going to happen. But I think Justice Kavanaugh also made what I think is an important observation in this case about how the adjectives that the court uses in whatever opinion it writes will prove to be quite significant in future litigation. And in part, because I think that is right in this kind of case. And also because this is something I emphasize in my constitutional law class. I also wanted to play that clip here. Following up with the chief justice's questions on the difference between you and the other side,

and other of my colleagues have also asked about this. It seems like the adjectives are going to be different and the adjectives will probably matter in future litigation. So I want to make sure I have crisply exactly what you think it should be. That was funny. I feel like a lot of the time the justices are like asking the advocates for help crafting an opinion or a rule but not usually this explicitly like tell us what to say um and and actually kind of helpful like if you're sort of struggling with you know they're navigating between these there's the basic and amgen and like at least as sham again suggested on behalf of goldman sachs of course are really struggling with how to reconcile it

in any eye so you did see cap and i'm saying like just give it give me a sentence and i'm not promising i'm going to put in the opinion but I just want to know what the sentence would say if you got to write it. Yeah. Like, I want to like change the law a little, but I don't want to like blow up the entire enterprise. Yeah, yeah. So speaking of Ken and Shanmugam for Goldman Sachs, he made a pretty bold ask, I thought, which was interesting, because he had made a similarly bold ask of the court in the climate case we talked about, you know, a month or two ago. And he basically asked the court not just to vacate under the new standard about, you know, when class actions can proceed, but that

it should also use the new or newly articulated standard to decide in this case whether this class could proceed. And presumably, you know, he thinks this is an easy case and that it should not be permitted to proceed. You know, unclear if that was encompassed within the question presented. And for what it's worth, I didn't get the sense that anyone was interested in that. But I guess props on the boldness of that. Go big. Yeah, like it takes a certain swagger to just walk up to the Supreme Court and be like, and you should decide this question of first impression that no lower court has your honors.

Just save everyone. You are a court of first review. I mean, what? Yeah, I thought that Tom Goldstein was very effective in sort of trying to distinguish what's relevant at what stage of the proceedings, which like, you know, the Justice Richard trying to tease apart throughout the argument. And he, I thought, I think twice, managed to get Justice Alito to describe his answers as helpful, which Justice Alito does not like dole out those compliments very often, particularly to the person representing some class action plaintiffs. And so, you know, again, I guess on the other side of case last week, you know, Melissa's feeling was that it's hard to get that worked up about this case. And I definitely felt that way going into it. But I found the argument actually quite entertaining. Okay, engaging, maybe not quite entertaining, but quite engaging, almost entertaining. I thought that sopan was quite good. There actually was at least one entertaining moment in the argument, which is...

Okay, that's right. That Justice Breyer used a word that to the untrained ear might seem like gibberish. When I read what they said, it seemed to me that what the judge was saying is, wait a minute, suppose what the guy had said at the company was ishkabibble, total nonsense. My God, how did that move prices? Why is that material? Well, 12B6, denied. Okay, now we have to assume it's material. Now, every member of the class is using the word ishkabibble. So whether ishkabibble is or is not material

was a matter for the judge to decide under the heading materiality. He may have made a mistake. You don't get an appeal until later. But the issue here is, are they all using the word Ishkabibble? Yeah, they all are. And therefore, there's a common issue for the class. So this is actually not Justice Breyer's first time using the word Ishkabibble in a Supreme Court argument in Herbert Markman and Positech v. Westview Instruments, Justice Breyer said, And the agency is up there talking about dioxin, SO4, iscobibble, whatever. Something very, very hard to understand.

And the agency interpretation is relevant. And the parties say to the judge, Judge, will you instruct the jury as to what that agency rule means? I don't think you'd have to have the jury decided, even though you might take evidence on it. Wait, did you just know, did you remember that he had done this once before? Or did you have to, did you dig it up? Yeah, I went looking. Because I was like, what, what is, what is Ishka Bibble? And so I like went searching in like Supreme Court, you know, like briefs and transcripts and whatnot for Ishka Bibble. And anyways, right, lo and behold, and, you know, some of our listeners also helped

in on this because they wrote in to say Ishka Bibble is apparently a thing. You know, for a second, I was wondering, like, is this a code word for I retire? Or like, I'm retiring. You rearrange the word. Right, exactly. I mean, you know, I'm retiring. You rearrange the word. Exactly. I mean, you know, like Taylor Swift has been unleashing like all sorts of like codes and clues about her fearless from the vault. And I was like, is Justice Breyer doing the same? I didn't know. But anyways, our listeners informed us that apparently it's capable is a dessert. It's a brownie with vanilla ice cream and chocolate sauce. Maybe in the Breyer family, like customarily consumed at moments of important life transition

or celebration. Exactly. It could still be a signal of some sort. It's like, look, if you want more treat time, Justice Breyer, there is a way. Churning ice cream at home, like learning to do that. Like you could, yeah, you could do all these things. Making your own ish kabibbles. Exactly.

But moving on. Okay, so the next case we wanted to talk about is TransUnion v. Ramirez. This is another class action case. This time the relevant doctrines that the justices might potentially use as cudgels against class actions are standing and also the typicality requirement of Rule 23 of the Federal Rules of Civil Procedure. Okay, so the case involves a class action lawsuit against TransUnion, a credit reporting agency people are probably familiar with, for violations of the Fair Credit Reporting Act. So the FCRA requires credit reporting agencies to use reasonable procedures to ensure that reported information is accurate. Okay, so TransUnion offers a product known as OFAC Namescreen to notify businesses

about whether a person appears on the Treasury Department's Office of Foreign Assets Control, or OFAC, a list of specially designated nationals. And this is people who are believed to pose some sort of threat to the country's national security or economy. And inclusion on that list disqualifies you from engaging in certain commercial transactions. So TransUnion informed a car dealer where Sergio Ramirez went to purchase a car with his wife that Ramirez's name potentially matched names on that list, which led to him not being able to buy a car, canceling a trip to Mexico, being apparently really embarrassed in front of his family. He then requested his credit file from TransUnion and got two separate mailings, one that contained a credit report and one about this OFAC alert. It was pretty clear that this two-mailing notification was a violation of the FCRA. Okay, so he then files a class action on behalf of people who also received these two separate mailings about their credit report and then their OFAC status. And in the class were

about 8,000 people, the lawsuit alleges that TransUnion's practices violate the FCRA and seek statutory damages. Okay, so the question is, can this case proceed as a class action? So TransUnion's argument is that the people in this class who received separate letters, again, about the OFAC alert, so separate from their credit report, may not have experienced an injury in fact, right? Because the mere fact that there may be information about them that is incorrect in TransUnion's files and the fact that TransUnion might have violated the FCRA by sending these two separate notifications about that does not in fact injure them as required, right, by Article 3 of the Constitution. As to standing, a little bit of background about the court's cases. The court, I think, has really struggled to answer the question of what happens in standing cases, or maybe, you know, put differently how the standing analysis changes, if Congress has authorized an individual to sue, right? So in those cases, the question is whether Congress has simply, you know, identified an injury that would satisfy Article III's standing

requirements and just given plaintiffs a way to go to court to challenge that violation or is somehow trying to create a new injury or right where one didn't exist before, right? And so in cases ranging from Lujan, First American, Spokio, Frank v. Gauss, the court just never managed to explain, in opinion commanding a majority of the court, the specific standing limits that are applicable in those kinds of cases. So as I read it, the plaintiffs are basically arguing here that this is an injury, you know, for Article III purposes, and that Congress has simply provided a vehicle for private enforcement of that injury. But I think the court kind of knows that its doctrine here is pretty unclear, and I thought that was really on display in this Justice Alito question.

So let's play that quote here from the oral argument. Yeah, Spokia's discussion of harm is quite clipped and it's potentially subject to different interpretations. So Salido wrote the opinion of Spokio. So it's a little odd. Because when he started to say, you know, Spokio's discussion of harm is, and I was like, oh, my God, what is he going to say? And is it quite clipped? And it's hard to know what it means. And it's like, yeah, I mean, I guess you're right. Like you can't tell us in this real argument what it means, but it was like a little rich to hear him say like, oh, we're all going to have to just try to figure it out together. Maybe you could have done it differently. And we just wind the clock back a little bit. We could fix this. So, you know, the argument I thought, you know, in terms of the kind of question of what this injury was to the class members, not like Ramirez, whose names were included incorrectly on these lists, but who didn't have the kind of experience that Ramirez described of going someplace and being denied access to a commercial transaction because of it. You know, it got a little metaphysical at points in terms of the way the court was trying to probe whether there was real injury here.

There are these variations of like, you know, if a tree falls in the forest kinds of hypotheticals. Leah, what did you think of those kinds of lines of questioning? These cases, by which I mean cases involving questions of standing in which Congress has provided for a right of action, just drive me nuts, right? Like the search for is this a real world injury and injury in fact, is just, it's a fool's errand, right? I think it's ahistorical. I think it is inconsistent with like the tradition of what the judicial power is. It is inconsistent with traditions of equity, right? Like if Congress has said this person is injured and they can sue, right? Like that should be the end of the matter. That being said, clearly a majority of the courts doesn't

agree with me and will continue to try and figure out what it thinks the limits are in these cases. Justice Thomas, to his credit, you credit, continued saying there is a distinction between so-called private rights cases in which one private party is suing another where he thinks that there basically shouldn't be a limit on the kinds of suits that Congress can authorize and public rights cases in which plaintiff is suing the government where he thinks there could be. There was also sometimes, and I think this is related to the point you saw in the transcript about if you don't know you were injured, were you injured? There was also an effort to figure out whether this case was about a past harm that had happened for which you could

sue versus a risk of harm that hadn't actually materialized, i.e. you know, your name was on this list, it now isn't. Can you still get damages for when you were wrongfully on the list? Or is the harm only that you were at risk of being subjected to the kind of injury that Mr. Ramirez experienced? So Justice Kagan drew this out, I think, quite well, asking if you were exposed to a carcinogen that could cause cancer within five years, could you sue within the five years? Paul Clement, you Paul Clement conceded that the answer was yes, and then she wants to know, well, could you sue in year six? Since at that point, you wouldn't have gotten cancer, but you were at risk to that previously. The chief justice asked a similar variation of these two themes of questions saying, well, statute allows you to sue if you're driving

within range of a drunk driver. You later find out you were driving within range. Can you sue after the fact? It's not at all clear to me what I think the court is going to do, although I continue to firmly believe that if they insist there are some Article 3 limits in these cases, you know, they are setting themselves up for future problems down the road. You know, Paul Clement got into a few law school puns in response to a question from Justice Kagan about, you know, the risk of harm. So let's play that clip here. In your hypo, it might be, but that's in part because it's 50% and it's cancer. And I think, you know, I don't want to go all learned hand on you, but I think you sort of think about both the risks and the consequences.

I mean, it's a little pandering, but God, he's just so good in those moments. He just like he pulls them out. But did he plan that? I doubt it. Maybe he did. But he is just like he's just so agile and quick on his feet in those exchanges. You know, maybe one more exchange I thought was worth playing just, you know, because every case this term has featured extensive discussion of, you know, the founding era common law. And like to the point, it kind of makes my head explode, like literally not every single case, but it's close. So here, despite the

fact that we're talking about, you know, this statute, the Fair Credit Reporting Act, all of a sudden it's important. And I think Sam McSackaroff representing the plaintiffs was right to have made the argument in the briefs and before the court about, you know, he basically was making the argument that inclusion on these lists, which he basically says are like, you know, these are like terrorist watch lists, or at least closely analogous to them, and that they really disable you from commercial transactions. So this is a serious matter to be included on these lists in error. He says there's a close analogy to the common law tort of defamation. You sort of have to make arguments in that register right now before this court, given its

composition. I actually thought it's a Lido exchange with Isaacerov, you know, who's a professor at NYU, for folks who don't know, was pretty interesting. One of the things we look for in determining whether there is Article 3 standing is whether there's any common law analog, whether this was the kind of case that would have been recognized as an appropriate case in court at the even though the person had no knowledge that the person had been subjected to that risk? I think that a defamation per se, a common law, there was no requirement that the actual party testified to his knowledge of the risk. The question was whether there was dissemination of information of the sort that would cause damage. And here, under the facts presented, there are people like landlords who routinely check your credit files.

Most Americans have no idea when their credit files are being accessed. And so this is an imposition that would not have been recognized at common law. So we've mostly focused on the kind of standing question in this argument. There also was this question of the typicality of Ramirez's injuries as compared to other class members. And, you know, I think in light of the kind of the trajectory of the court's class action jurisprudence in some of the cases that you mentioned, Leah, there's an instinct that every time the court takes a class action case, it's going to be bad for plaintiffs or consumers. And I just I guess I just wasn't totally sure of that here, you know, that maybe they might want

to find a way to narrow the class. But for the reasons that Isakerov gave, you know, in the exchange that we just played, I just think that would be pretty hard to do. So I don't know. I think that like Goldman Sachs, I had a little bit of a difficult time coming out of this argument with any strong sense of where the court was going. It's possible we'll get another, you know, opinion like Spokeo, in which the discussion of harm is quite clipped and potentially subject to different interpretations. And then they can wistfully invoke it like five years from now. Impossible to know what the court meant in that case. Yeah. Yeah, I actually think it spoke to us. I mean, this is not an area in which I consider myself a deep expert, but I do find that a really tough opinion to parse.

And I feel like it's possible we're going to get something similar here. Yeah. So the last argument we wanted to recap is NCAA versus Alston. This case, too, is a class action against the NCAA, arguing that the NCAA's restrictions on eligibility based on student-athlete compensation violate federal antitrust laws because the restrictions forbid athletes from receiving fair market compensation for their labor. The courts below said the NCAA couldn't limit education-related benefits like free laptops or paid postgraduate internships, but that it could restrict benefits unrelated to education like cash salaries. And maybe one little piece of background to

throw in here. So we should say that in antitrust cases, there are certain kinds of anti-competitive conduct like price fixing, right? Competitors getting together and setting the price of a good that they are selling. Or here, you know, you can think of it as salary fixing, right? Competitors getting together, like different universities getting together and saying they're going to fix the salaries of student athletes at zero, right? It's a kind of price fixing. And those in ordinary context under the antitrust law are viewed as per se unlawful, right? You just can't reach certain kinds of agreements with your competitors. But actually, the NCAA has been successful in arguing here that these restrictions are not per se unlawful. They need to be evaluated using something called the rule of reason, which the court uses in most antitrust cases that don't

involve these like facial agreements among competitors, again, on things like prices or salaries. So if a court is using the rule of reason analysis, it looks to the anti-competitive effects of a particular restraint, and it asks about whether those are outweighed by the pro-consumer benefits that the restraint might confer. So the dispute in this case has often centered around whether the restrictions are justified in order to preserve the amateur nature of the NCAA. That is because athletes, quote, aren't working or aren't laborers, and it's just all games for the sake of games. The antitrust framework does not apply. And the NCAA says it's important to consumers that athletes be

amateurs and they're working for free is central to the amateurism. If this sounds silly, you know, like this thing is just so obviously illegal to me. And, you know, like the Supreme Court seems to agree and seems to think that this argument is pretty silly, too, and that it just does not capture the facts or reality of how college sports or at least, you know, major college sports like basketball or football operate today. So, for example, the chief justice noted that schools can pay up to $50,000 for a $10 million insurance policy to protect student athletes for future earnings. And again, this looks like they are paying the athlete to play in college. Part of what makes this thing just so wild is even though they insist on saying college sports are amateurs, college coaches are paid like insane salaries. And Justice Thomas noted this at argument. But is there a similar focus on the compensation to coaches to maintain that distinction between amateur coaches, coaches in the amateur ranks, as opposed to coaches in the

pro ranks. Well, it just strikes me as odd that the coaches' salaries have ballooned and they're in the amateur ranks, as are the players. Coaches in several states were actually the highest paid state employees in the entire state for several states. You know, they're making more than like two million a year. And it's just really hard to say, well, that's all amateur hour. Then we had our boy Sam, as in his concurrence in DeGweed, you know, he really was on to something here. And I hesitate to call this woke Lito because, you know, woke Lito is like where he

votes for a criminal defendant and then limits the ruling or like feigns concern about progressive causes as part of like a Trollito shtick. Whereas here, he was actually filled with what I think is real and righteous rage about how these universities treat athletes. But the athletes themselves have a pretty hard life. They face training requirements that leave little time or energy for study, constant pressure to put sports above study, pressure to drop out of hard majors and hard classes, really shockingly low graduation rates,

only a tiny percentage ever go on to make any money in professional sports. So the argument is they are recruited, they're used up, and then they're cast aside without even a college degree. So they say, how can this be defended in the name of amateurism? So you go, Sam, comrade Alito, welcome to the proletariat. I mean, I just, I did not even know what to think here. And it was one of these it sort of like shaped some of the argument. Kagan and Barrett both referred back to it like and it seemed genuine.

So it's just it's it is the kind of the selective experience and then deployment of like concern and empathy. I find a little hard as well. I'm sure you do as well. But it did seem such as it was totally sincere, actually. Yeah. I do not think this case is going to go well for the NCAA. You know, in addition to this thing being like, obviously, illegal, you know, the justices seem to be leading that way as well. At one point, Justice Breyer referred to what the NCAA was doing as, quote, murder, like they're getting away with murder. And anyways, so I just don't really see this one turning out well for them. Although it was Breyer, right, who later in the argument said this was a hard case for him because it involves a unique kind of product that has brought

joy and all kinds of things to people. And I had not pegged him as a college sports fan, but it seemed like he was maybe telling us he was, or at least understood that for many people it was important and a source of joy. Yeah. Maybe, you know, Justice Breyer actually is capable of empathizing with most people, even when he himself, you know, does not share their views. I think he is. Yeah. Okay. So I agree with that bottom line. This is a rough argument, I thought, for the NCAA. And obviously, Seth Waxman is a terrific lawyer, but, but I, I didn't get the sense that his arguments were faring particularly well with most of the court, actually. No. But you know who was doing really well with the court?

I have an idea. This is the first performance as acting Solicitor General of now acting Solicitor General. Elizabeth Preligar had her first argument as acting Solicitor General. And I mean, spoiler, I thought she was amazing. What did you think? Yeah. You know, as I think Lindsay Harrison of Jenner and Block said on Twitter, you know, other people need not apply for the position of Solicitor General since, you know, Joe Biden has found his Solicitor General.

You know, she was really great, you know, identifying what the justices' concerns were, addressing them fairly specifically and efficiently. You know, it's almost like women do have the stature and skills to be Solicitor General. So there's that. You know, the Chief Justice had a rare slip up. Thank you, Counsel. Thank you, General. There were a few other titular slip ups in this argument. So Seth Waxman made a mistake that I've made before promoting Justice Thomas to Chief Justice. Well, Mr. Chief Justice, the amateurism rules that the eligibility, by the way, I'm sorry, but I'm sure you would be terrific at that.

Let me just say, there's no opening, Mr. Waxman. There's nothing more I can say that will not get me into trouble. So let me answer Justice Thomas's question. Wait, have you made that mistake before on the pod and have you not edited it out? No, I think we kept it in. We didn't edit it out? Okay. Yeah, I think – I remember you making it, but I didn't remember if it made air.

Yeah, I guess I don't remember whether it made air, but I think it was like in our very first episode in which I called Justice Thomas like Chief Justice or something. Yeah, yeah. Melissa was like, no, don't do that. Yes, it was actually, it was a cute moment. And you said like the sort of dander on the chief justice's like sort of neck go up when he sort of like interjected to say the position is not available or there's no opening. I thought it was actually, it was a cute moment.

Maybe like one other note about how the argument wasn't going well for the NCAA, you know, a sign to me that it wasn't going well was when in Seth Waxman's closing, he maybe tried to throw the Little League under the bus and or equate the Little League with the NCAA. Justice Gorsuch, monopsony power does not take away the producer's right to define the product any more for the NCAA than, for example, for the Little League, which eight years ago got $80 million for its television contract. It was just very strange to me to be suggesting that the nature and function and markets of Little League were the same

as NCAA. But what do I know? You know, the whole closing, I thought, even though I didn't think he was really getting traction for most of the argument, I thought he was still very good. But he just seemed kind of off kilter in his closing. And I actually thought it's because Preligar was just so superb that he was like a little bit flailing to figure out how to end. One thing, though, I think we should say is that if the court, as I think we both believe is likely to happen, does affirm the Ninth Circuit, that's not the end of the NCAA or college athletics as we know them, right? Like, what the district court did here actually was largely hand a win to the NCAA. It got to keep, as you said at the outset, a lot of its restrictions

in place. The court, the district court just said, you know, I think after a full trial that these total prohibitions on cash incentives and awards were unlawful, but said the NCAA or schools could impose limits. The limits that this injunction, I think, contained are pretty modest limits. And there could be further litigation over the exact, you know, size of those awards. But again, I think just affirming the sort of, affirming the approach taken below just means that some compensation, not complete out of control competition with salaries, like in the hundreds of thousands or millions of dollars is going to ensue immediately. Like this is just about changing a regime in which you cannot compensate student athletes at all for their labor.

Okay, so we've been so patient, both like basically since January, but we finally have some nominees. So, okay, so we finally have some judicial nominees. Week after week, we've sort of sadly ended the show. Like, you know, we've had some culture stuff to talk about, but we have really been eager to talk about the judicial nominees, have had none. On March 30th, the Biden administration dropped a whopping 11 nominees to the federal courts,

10 court of appeals and district court judges, one D.C. Superior Court judge. We talked about Chris Kang from Demand Justice had basically been saying not to worry. We weren't sure if we should listen to him or not, I think, as we said about two weeks ago. But maybe it seems like he was actually right. You know, like by this point in their terms, Obama had out one or two or three, but again, 11. And obviously, even more important than quantity is quality of these nominees. Favorite Judge Katonji Brown Jackson of the District Court of D.C. For the Seventh Circuit, Candace Jackson Akawumi. For the Court of Appeals for the Federal Circuit, Tiffany Cunningham. And then seven district court nominees, two for the District of Maryland, Judge Lydia Grigsby and Judge Deborah Boardman. Two for New Jersey, Julian Niels and Sahid Qureshi. For D.C., Florence Pan. For District of Colorado, Regina Rodriguez.

For New Mexico, Margaret Strickland. And for the D. Margaret Strickland, and for the D.C. Superior Court, Judge Rupa Ranga Putagunta. So that's the list of names. Leah, you have shared some reactions on Twitter, but we have the luxury of many more characters here on the podcast than Twitter. So what do you think of these nominees? Bottom line, extremely happy. But because I'm greedy, I want more. You know, for reasons I'll explain. I think it's helpful to think about the Court of Appeals nominees separately from the district court nominees. And I'm also more excited about the Court of Appeals nominees.

On the whole, just very good. A plus. Amazing first batch of nominees. You know, the professional diversity is really great. Two of the three Court of Appeals nominees and two of the seven district court nominees are former public defenders. This is really good, given that fewer than 3% of all district court judges are public defenders, fewer than 8% of Court of Appeals judges are former public defenders.

Judge Neals has experience as a local government lawyer. So just like really great. The demographic diversity, also really great. All three Court of Appeals nominees are Black women. This is important because there have only ever been eight Black women ever served on the Court of Appeals by almost 50%. Nine of the 11 nominees are women. Women wake up roughly only 30% of the federal judiciary. Two of the nominees will literally integrate the courts of appeals on which they will serve. The Seventh Circuit, which includes Wisconsin and Illinois, currently has no Black judges. The Federal circuit has never had a Black woman on that court. Judge Florence Pan would be the first Asian American woman on the D.C. federal district court. Judge Grigsby would be the first Black woman and I think first BIPOC woman on the Maryland district court. Judge Karashi would be the first Muslim American

district judge anywhere. So, you know, on the whole, inject this into my veins. One shot, not two, just like, right, just all of it at once. Or two, right? Like, I'll take more. I'm a little greedy. You know, that being said, I think the Court of Appeals nominees are, to me, like a little bit more exciting than the district court nominees. I do not mean to discount the importance of the first of the district court nominees that I just mentioned. But to me, professional diversity is just super important given the astonishingly few judges who have been civil rights lawyers, public defenders, or worked on behalf of laborers. And so the

greater percentage of those professionally diverse backgrounds in the court of appeals nominees were really important to me. You know, more of the district court nominees had more traditional backgrounds of being AUSAs and whatnot. There were also no nominees who represented, you know, consumer or worker or labor interests. And I think that that is super important. And equally important to me is just the age of the nominees. You know, Professor Micah Schwartzman at the University of Virginia has done a bunch of important work about the age of Democratic nominees relative to Republican ones. only five over 55, almost half of President Obama's nominees were over 55. This is important

for any number of reasons. It affects how long the judges serve, whether they will become chief judge. And also it affects the pool of nominees for future administrations since you can't or are less likely to elevate someone if they are over 65. So, you know, the district court nominees are considerably older than the Court of Appeals nominees. Judge Katonji Brown Jackson is 50. I think Judge Cunningham is around there too. Judge Jackson Akawumi is under 45. So, you know, she would be a Supreme Court contender for several years. And that to me is really important Whereas, again, the district court nominees are all older. Judge Strickland is the youngest, and she's Judge Akilumi's year in law school. So it was just a little bit odd to me to kind of see that.

Yeah, I think that's a really nice point to make. And one sort of related thought is that, I mean, maybe this is like a weird thing to be thinking about at the front end, but I think these nominees should be prepared for lengthy service, right? You know, I just, we had a lot of Clinton and Obama nominees who left or took senior status under either President Trump or even in some cases the very end of the Obama administration. You know, we were just talking about the Seventh Circuit, and I thought about Judge Ann Williams, who was a Clinton appointee, not an Obama appointee. But she took senior status in 2017 at the age of 67, right, which handed Trump a vacancy. And I totally get wanting to do other things if you've been a federal judge for like most of your professional life. But I kind of think that's something that for this new crop of nominees, just thinking in a perspective sense, people should go into these jobs like thinking they're going to stay. I don't think there should be a stopping point for 10 or 15 years and then you go do something else. And so I do think that actually that could be a disincentive to young nominees. If that is part of the expectation of service is that you and I don't know, maybe you disagree with us.

But I actually think that like if you're going to take this job, you should conceive of it as something you're going to do for the rest of your professional life, especially in the court of appeals or you're handing, you know, these vacancies that are just hugely valuable off to someone else. Now, I'm not saying anybody has to, you know, spend their entire natural life on the bench. But I think that these should be long-term service positions, which I think actually could potentially weed out people who are, you know, the idea of committing to your job for life at the age of 38 or 42 or something might seem like a lot, but these are unbelievably valuable positions. And I just think people should be in them for the long haul if they're going to take them. Yeah, no, I completely agree that that should be, you know, the perspective that people

bring to them. I guess I am slightly more confident in the ability to identify some people in their late 30s or early 40s who are willing to do that. But, you know, I agree that that should be, you know, something that people are thinking about. But, you know, on the whole, my take home is hooray, but also Democratic senators who have more say over district court nominees than, you know, they do over court of appeals nominees should perhaps emulate the Biden White House and who they are nominating. And, you know, again, on the note of if you give a mouse a cookie, they will want more. I want to put out in the universe some other things I'd like, which I've already screamed about on Twitter like several times, but I just feel the need to say it again. Use the pod, definitely.

Since we need nominees who have represented workers' rights and labor interests, there is a D.C. Circuit opening, you know, on which you could put Judge Deepak Gupta, who just won a unanimous Supreme Court victory on behalf of consumer rights. I am pretty sure that is a sign from the universe about, you know, who they should be thinking about for the Supreme Court. You know, there is also the Second Circuit, the several Second Circuit vacancies hanging out there, given the theme of this episode slash the podcast in general is how to enforce slash what is necessary to enforce the Voting Rights Act. To say it again, appointing tail hoe to the Second Circuit is indeed necessary to enforce the Voting Rights Act.

And in the in the actually necessary. Right. Like in the actually necessary sense, not in the Wilbur Ross sense. Yes. Correct. And then, you know, we that that that court is like starved for women as well. And there are some really great candidates, you know, who have also litigated on behalf of women's rights, whether it's Rhea Tabakomar, Galen Sherwin, Srat Chowdhury. Again, I could go on. Really strong start. Excited to see what comes next. I mean, we're almost out of time. But the one last thing I wanted to ask about in light of this batch of nominees is what we think about. So obviously, Judge Jackson, now in the district court, soon to be elevated to the D.C. Circuit, is on everyone's short, short lists for the next Supreme Court vacancy, presumably the one created by Justice Breyer's retirement. Do we think there's anything revealed in the White House's decision to elevate Judge Jackson to the D.C. Circuit about their sense of Justice Breyer's likely timing. I mean, I think you could read this in a couple of ways.

One, they want to get around the D.C. Circuit because then it's an easier, I guess, perceived as an easier elevation from the D.C. Circuit to the Supreme Court. And thus, this is going to be a short interim stop. On the other hand, maybe you wouldn't bother with this interim stop if you knew for sure he was going to retire

in the next couple of months. And so this is a signal that he's not going to go anywhere until, I don't know, next year, which I think is just wildly irresponsible, if true. But I think it's possible to read this decision in both of those ways. Did you have an instinct? I don't. I think it's possible they either don't know, or they might think that, you know, putting together this batch of 11 nominees doesn't necessarily invest, you know, all this capital and time in one nominee to the D.C. circuit. So it's more of like an economies of scale and

efficiency such that if they then decide to nominate Judge Jackson, who recently confirmed the D.C. circuit to the Supreme Court in the event that a vacancy arises, it's not a huge deal. Maybe that's just what I want to tell myself. But I, you know, I think it's maybe hard to know. And they made this decision based on the expectation that they don't know whether Justice Breyer is going to retire. And this is the person they want on the D.C. Circuit, you know, in the event that there is no vacancy. And even if there is, you know, it's good to have her there. Like artisanal homemade ice cream. Like it is just it is it is so good. And you would have so much time.

Ishka Bibble, Justice Breyer, Ishka Bibble. You know what that means. I think that's actually probably a good place to leave it. Yeah. So thank you slash Ishka Bibble to Yale Law's chapter of the American Constitution Society and Jake Mazzitis for organizing this event. Thanks to our producer, Melody Rowell, and thanks to Eddie Cooper for making our music. And thanks to the Biden White House

for giving us some core culture material.