Strict Scrutiny - SCOTUS Greenlights Government Corruption

Episode Date: June 26, 2024

Leah, Melissa, and Kate weigh the implications of Bloomberg’s scoop on EMTALA (apparently someone at the court got a little trigger-happy with the upload button). Then they take a look at today’s two official opinions–is a $13,000 bribe equivalent to buying someone Chipotle? Coach Kavanaugh has thoughts. And did the government strong-arm social media companies into censoring content? There’s a word for that: jawboning. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I'm Kate Shaw. I'm Leah Littman. And I'm Melissa Murray. And the band's all back today for this bonus episode on,

wait for it, the two opinions that the court deigned to release today, both of which underscore some clear patterns at the court, namely that this court seems bent on greenlighting corruption and reversing the Fifth Circuit. We're here for one, not here for the other. We also wanted to note some concerning district court decisions invalidating the latest student debt relief initiatives that the Biden administration has put forth, as well as a really important certs grant. But wait, Kate, you're looking. What's going on? What's happening? We are still processing in real time some breaking news that Bloomberg has just given us.

And that is that it appears that the Supreme Court inadvertently posted a copy of the EMTALA disposition on the court's website this morning before immediately taking it down. I'm sure the two of you were on that site refreshing every five seconds. I sure was. I missed it. But you know what? The intrepid team at Bloomberg somehow caught what flashed and then disappeared, which was apparently the court's disposition. And I'm saying disposition and not opinion, you know, deliberately in the case involving the federal EMTALA statute, that's the case about emergency care for pregnancy emergencies if they happen in states like Idaho that one of the ones we are the most anticipating and dreading, at least coming out of the oral argument. But what do we think we learned from this Bloomberg reporting? as improvidently granted. That is to say, SCOTUS isn't going to decide whether EMTALA permits medically necessary emergency abortions to protect the health of the mother. So we won't get to the merits. But by dismissing the case as improvidently granted, it would reinstate the injunction that the trial court had earlier issued that required the state to permit hospitals to perform medically

necessary abortions. So that would be a good thing, I guess. It would be. And to be clear, we don't know whether this is going to be the final disposition of the case. This was an inadvertent posting, much like the Dobbs leak was. That was not inadvertent for a momentary posting. Like, it sure wasn't. We don't know that Martha Ann wasn't in the reporter's office just uploading documents in order to send up a flare, right? I'm just saying we can't rule

it out. Or maybe this is a Trojan horse. We don't know. And again, to be clear, we don't know whether this is going to be the final disposition of this case. But in the event it is, we want to prime our listeners for how to understand what Bloomberg reports the court might do. And as Melissa said, this is good news in that it allows women in Idaho to receive life and health saving care, but that could be temporary. The decision Bloomberg describes is not a decision on the merits about EMTALA. It does not say that EMTALA requires hospitals to be able to provide emergency and medically necessary abortions. Instead, they would be deferring a ruling on that,

saying, we'll get to this later. Maybe. When's later? Maybe after an election. Yeah, and again, to say this again, Maybe after an election. Yeah. And again, to say this again, the court might still rule that emergency abortions can be banned and hospitals can be required to deny women emergency care. We don't know whether this is the final disposition or the opinion or ruling we will actually get. But if we do, this is just a pause.

We'll get to this later. Can I just say that if this is what happened, and if this is the disposition cert and providently granted, we're not going to reach the merits just yet. We could reach the merits later, maybe after November 2024. That would be so in the Chief Justice John Roberts wheelhouse. Remember in Dobbs, an oral argument in December 2021, how he was pushing, pushing, pushing to have the court take a compromise position whereby they would uphold the Mississippi law that was challenged in Dobbs, but they would not formally overrule Roe versus Wade, even though those two things were utterly inconsistent with one another. And we speculated then that his whole move toward this

compromise position was really about the midterm elections. Same idea here, if this is exactly what's happening. It is. And this would effectively be like the medication abortion ruling, again, saying, just wait until after November 2024, we'll get to that Comstock Act and we will get to medically necessary abortions at some point. Just not now. And don't worry about it, ladies. You can hang up your voter registration cards. We've got it handled. Right.

Exactly. Exactly. No need to go to the polls, ladies. It's all good. Exactly. Calm down, you hysterical lady parts. Nothing to see here. No need for a rovember.

We got it. That well could be the strategy. So we have these two huge abortion cases and the Supreme Court, maybe if, again, this is what we are going to see as the final outcome in this case tomorrow or Friday, the court could have on its dance card two abortion decisions in which it declined to yank away medication abortion and it declined to remove the protections of federal law from women experiencing pregnancy emergencies. And it definitely does seem as though the best way to read those two events is the court trying to lower the temperature on abortion around the election. And that cannot be how these two things land. Like, it's critical. Because this is just about when, right? This is not if. So stay vigilant. Don't let them gaslight you. Also, just one other thing about timing. If, in fact, this is what happens,

it's so crassly political, I think. Because a dig, a dismissal as improvidently granted, cases argued April 24th, I think, it should not take two months for the justices to decide, well, this was a premature moment to intervene in this case. We should wait for lower court proceedings to further develop, et cetera. Usually that would happen at conference and they would dismiss it within a week or two. So it looks to me like they sat on it for two months trying to figure out some off ramp and this is what they came up with. So can I remind our listeners about a much, much earlier dig that was, again, sort of along similar lines? So it's history and tradition story hour, listeners. Back in 1955, just a year after the court decided Brown versus Board of Education, another case came to the court called Name v. Name,

which was a challenge to Virginia's Racial Integrity Act, which was the law that banned interracial marriage. And the court initially granted certiorari, and then apparently memos were circulated, and Tom Clark, who was a justice at the time, wrote in one of his memos to his chamber staff that this case, Name v. name, was a quote unquote ticking time bomb because everybody knew that the real fear behind integration wasn't the prospect of

integrated classrooms, but that integrated classrooms would in time lead to integrated bedrooms. And so the court, perhaps recognizing that massive resistance was already an issue and that the South would literally lose their minds if the court decided, name versus name, decided to dig it. CERT was improvidently granted and this got kicked down the road to 1967 when finally the court invalidated Virginia's miscegenation ban and then was really kind of doing a cleanup job on all of those recalcitrant Southern states. So we've seen this before. Yes. And just some additional possible explanations for this delay. You know, one is very possible there's negotiations happening behind the scenes and there were not sufficient votes for a dig, you know, immediately after conference. Second,

also possible that Sam Alito has in the works an absolute howler of a dissent that is going to delay any possible posting of said disposition. And then finally, I think we also have to put on the table that the court is saving this because it will get covered as the court permitting emergency medically necessary abortions. And so timing that ruling together with the rulings we are concerned about in the immunity decision, the January 6 case, the administrative law cases, and others is a way of tempering the media coverage. One other thing, if they did not have to write a long opinion about preemption doctrine, that's just another reason it is outrageous that they are waiting to release as many opinions as they still are.

It is insane. I want everyone to read Leah's Times op-ed about the unconscionable delay in the immunity case every day, twice a day if necessary, until that fucking opinion is out in the world. And I am sure they are not going to release it tomorrow because it's debate day and they do not want the immunity opinion to drop on the day that the presidential debate is happening because they don't want to be headline news. They don't. I think it's going to be another quiet day Thursday so they can try to like escape attention during the presidential debate and then just go wild on Friday and maybe Monday. We will not let them escape attention, however. No, we will not. We have some additional breaking news regarding the Amtala decision from Bloomberg.

So Bloomberg has added some details that I want to note. Three justices dissented from the dig. Clarence Thomas, Samuel Alito, and Neil Gorsuch, obviously. Justice Kagan apparently wrote separately in a concurring opinion. Justice Jackson wrote separately to say, quote, today's decision is not a victory for pregnant patients. It is delay. Yes, girl, keep that line in if this is indeed the disposition. Keep it in. Bloomberg really keeps it coming. Justice Jackson for the disposition. Keep it in. Bloomberg really keeps it coming. Justice Jackson for the win.

So should we talk about the opinions that we actually did get? Yes, sure. All right. All right. So first up is Snyder versus United States. This was a case about government corruption. All right. All right. So first up is Snyder versus United States. This was a case about government corruption. Crickets. The court and government corruption. What is there to say or do? Well, Leah, the court in a six to three opinion that split along familiar ideological lines

narrowly interpreted yet another anti-corruption statute to make it easier for government officials to be corrupt. I know this is truly shocking from this corruption forward court, but let me just say- Make public corruption great again. Yes. We say yet another anti-corruption statute because this court has actually been on a real tear in the last couple of years in limiting the reach of anti-corruption statutes. Basically, they have eliminated the government's ability to prosecute anything that falls short of extremely cartoonish quid pro quo bribes. So just a few cases that are part of this trend. Like, Kate, why don't you get us started?

Because I know you've written a ton about this in your partisanship creep paper. I did. And honestly, it would take us a whole episode to really talk through the development in this area. But just to mention a couple that people might remember, McDonald versus United States was a case in which the court overturned the conviction of former Virginia Governor Bob McDonald for accepting lavish gifts, including money for his daughter's wedding, a Rolex watch, lots of other things that were given in exchange for the governor making some calls and arranging meetings in order to help a local businessman. Court said, nope, that kind of conduct cannot be prosecuted. Then we had Kelly versus United States, which is a case in which the court overturned the convictions of several New Jersey officials related to Bridgegate. That was then Governor Chris Christie and his administration's decision to shut down lanes on the GW Bridge as political retaliation for another official not supporting Christie's reelection bid.

Again, the court said that wasn't corruption that could be prosecuted. We had Ciminelli. We had Percoco. Earlier, we had Sun Diamond. All of these cases involve different statutes and different underlying conduct. But the exact same bottom line conclusion, which is none of this is conduct that the federal law can reach and can criminalize. And it is kind of this game of whack-a-mole in which the court strikes down the use of particular federal anti-corruption statutes. Federal prosecutors find another statute to charge egregious corrupt conduct under, and the court also either strikes down or narrows that application of the statute until there is almost nothing standing. And yet, and we got another installment in that effort today.

So this case, Snyder v. United States, concerned one of the last remaining anti-corruption statutes, 18 U.S.C. Section 666, not my choice, which prohibits state and local officials from corruptly soliciting, accepting, or agreeing to accept anything of value from any person intended to be influenced or rewarded for an official act. The specific legal question here was whether accepting a gift, or in this case, a gratuity or reward, for an official act violates the statute. So this isn't bribery, which happens before the official act. In this kind of scenario, the official takes a gift or a reward without some kind of ex ante agreement that promises the gift in exchange for the

official act, but where the gift is in exchange for the act, right? So in this particular case, an Indiana mayor had awarded a million dollar trucking contract to a trucking company, and the trucking company later gave him more than $10,000 for consulting services, or maybe just as a gratuity. The US federal government said that that was corruptly accepting something of value for the purpose of being rewarded for the earlier act, giving this trucking contract. And guess what the corruption forward Supreme Court said? No, because every government official is entitled to at least one emotional support billionaire to provide them gifts, gratuities, consulting services, and they need to be able to accept

things of value from said emotional support billionaires. So the court split, as we said, along six to three ideological lines with Justice Kavanaugh writing for the six Republican appointees and Justice Jackson writing the dissent for the three Democratic appointees. Can I ask a quick question, which is, do we think that even this shameless court understood that you just could not have, like, Clarence Thomas write the opinion saying, yes, actually, yes? The bench is getting really small for the anti-corruption cases. So who, among the ones in the majority, you definitely can't have Thomas. You probably can't have Alito. So I guess Kavanaugh is like relatively clean on this front right now.

So I guess this is how he gets the opinion. They're like, okay, so Brett's clean, Amy's clean, and I hate Neil. So you, Brett. Oh, but Neil has an incredibly annoying concurrence with people. Yes, of course. Of course. So he did get his say. But yeah, so this is a Kavanaugh opinion.

I mean, I guess I want to reserve judgment on that until I see who's writing the January 6 Fisher case. Because if they assign that bad boy to Alito or Thomas, then that's a sign there is actually no shame or vergonia. There's no vergonia. Exactly. Yeah. Okay. All right. Fine. Let's reserve judgment.

I think that's right. Okay, so Kavanaugh's opinion starts with the baseline view that while some gratuities might be problematic, others are commonplace and might be innocuous. The opinion then proceeds to make a remarkably a textualist, some might even say anti-textualist move in which it essentially says, look, this provision regulating gratuities to

state and local officials has some things in common with the anti-bribery provision applicable to federal officials, but we're not going to actually treat it like an anti-bribery statute. Why would we do that? Even though the provision, as we've noted, has some obvious similarities with the separate provision regarding federal gratuities. Textualism. Can I just say, though, you said, Melissa, the opinion opens by noting that there might be some problematic gratuities, but there are lots that might be innocuous. And then it lists a whole bunch of innocuous examples, like an end of your gift basket to a child's public school teacher, a college dean giving a sweatshirt to a city council member.

Or like some students taking a professor to Chipotle. Okay. And then also to a steak. So yes, it is like the most Brett list. It's like, what about giving somebody

$100 to get a Dunkin' Donuts? Wait, wait, wait. Do it in your Brett voice. Do it in your Brett voice. No, but I don't have Eric Holder's sunglasses on. No. It only,

it only really, wait, wait. Okay, fine. I will actually read it. Do it, do it, read it, read it. But then Jackson actually goes off right on. She disparagingly references burrito bowls.

Oh, Leah, nice sunglasses. I love those. Okay, fine. So let me try to do my Kavanaugh voice. Hold on. This is like a little Dadaist poetry. I don't have my sunglasses in my little recording basement. Some of us came ready.

That's your fault. Oh, my God, I do. Okay, here we go. All right, it's strict scrutiny beat poetry. Strict scrutiny is poetry. Okay, go, Brett. I like this. All right, all right, let's do it.

Okay, so is a $100 Dunkin' Donuts gift card for a trash collector wrongful? What about a $200 Nike gift card for a county commissioner who voted to fund new school athletic facilities? Could students take their college professor out to Chipotle for an end-of-term celebration? And, if so, would it somehow become criminal to take the professor for a steak dinner? And could they order guac because guac is extra? This opinion is extra. I love Jackson like just, she's just like, oh, we're talking about fucking This opinion is extra. I love Jackson.

She's just like, oh, we're talking about fucking burrito bowls. Okay. All right. So, yeah. So, anyway, the point I was actually going to make here is that he lists these, like, that's actually a later passage. Earlier he's also talking about the, like, gift card for the school teacher. But the point is this case involved a $13,000 payment, not a Chipotle burrito. Like, come on, Brett.

Okay, time the fuck out, Kate. Who among us hasn't given our kid's teacher a $13,000 trucking contract? Like, who hasn't done that? Yeah, it's like the world these people live in. Wait, wait, wait. Do you remember the oral argument? Oh, yes. I'm not surprised at all by this opinion. Oh, these examples.

Because the oral argument, like, the inn at Little Washington, giving a tip to my plastic surgeon. Like, all of this is like, they were just clowning. Oh, I'm now remembering, though. Neil did, somebody did bring up, Neil brought up Chipotle at the argument, right? Maybe this is about him. No, it was Cheesecake Factory. It was Cheesecake Factory. Oh, that's right.

Yes. Yes. Okay, Chipotle is all bread. All right, we're getting a little far afield. Okay, let's go back to the opinion. We're getting a little far afield. Okay. Let's go back to the opinion. We're getting a little far afield from anti-corruption. Correct. Much like the court is. I think they want us to, right? That is, I'm sure, the point because what they are doing here is so dystopic, right? So it is funny. It is preposterous. But they're essentially making corruption and even egregious corruption insulated from criminal accountability as a matter of federal law. So Kavanaugh does this using one of his like now sort of go-tos, which is like a list, sometimes with bullets, sometimes without.

There's like invisible bullets, I think, on this list. But he says text, statutory history, statutory structure, statutory punishments, federalism, fair notice. These are all the reasons he gives for finding that this statute cannot be applied to reach the conduct at issue here. But I have to say, I don't know if you guys felt this way reading the opinion, his heart isn't even in it. He's like, I think the vibes are off in applying this law this way. And that's really what the case is about. And he sort of tries to make arguments grounded in these categories. But I don't think he even has convinced himself, quite honestly. It's really just the vibes. Yes.

The Justice Gorsuch concurrence can basically be boiled down to one thing. He's just like, guys, this whole decision is really about the rule of lenity. And the rule of lenity is a canon of statutory construction that basically says we interpret vague criminal statutes in favor of the accused, the defendant. And so I guess in this case, this statute is weirdly vague, and we should interpret it in the light that is most favorable to Mr. Snyder, the government official receiving the $13,000 tip for awarding the contract, which is all apparently fine. Yeah, so basically the court 6-3 went all in on the just the tip theory of government. That's also, you know, the bottom line of this case. But now on

to the good opinion in the case, which is Justice Jackson's dissent, and it absolutely hammers the majority. It's so pointed and so snarky. Okay. And it just reminds me of Steel Magnolias, like that point in Steel Magnolias where one, I think it's like, I forget which one it is, but it's like, if you have nothing nice to say, come sit next to me. I want to come sit next to her. I know. I know. Me too. Okay. So there was one line.

There were many lines, but let's start with this one. Quote, Snyder's absurd and atextual reading of the statute is one only today's court could love, end quote. Oh, really, girl? Why is that? Why would only this court love this? Could it have something to do with the free PJ trips they get as gratuities for allowing emotional support billionaires to spend money influencing officials? I don't know, perhaps. So this dissent is really, I love it so much. I'm literally injected into my veins. It accuses the court of relying on policy objections to these kinds of prosecutions. She notes, quote, both the majority and Snyder suggest that interpreting section 666 to cover gratuities is problematic because

it gives federal prosecutors unwarranted power to allege crimes that should be handled at the state level. But woulds, coulds, and shoulds of this nature must be addressed across the street with Congress, not in the pages of the U.S. reports, end quote. Hello, Justice Alito. It seems like you've been reserved on some of your own crap crap. Like Congress should get in here, not us. for the government, which is the statute prohibits more than one thing. One, accepting gifts to be influenced, i.e. like quid pro quo bargains, but also rewarded. That's in the statute and that is gratuitous. The Jackson opinion describes the majority as offering rank speculation as to why rewarded in Section 666 might mean something other than what it ordinarily does, ultimately assigning the word some busy work relating to potential defenses to bribery charges. It has this like amazing transition, which is, speaking of text,

I think I'm not going to put sunglasses back on, but just like imagine they're back on for this part. A different kind of sunglasses, like actually cool ones. So speaking of text, the language of other statutes demonstrates that Congress uses the word reward when it wants to criminalize gratuities. And I mean, she's just like so disparaging of, I think, all of these like cutesy examples. She says, limits within the text of Section 666 provide fair notice that commonplace gratuities are typically not within the statute's reach, and they suffice to prevent prosecution of the gift cards, burrito bowls, and steak dinners that derail today's decision. So she's like, the statute already excludes that, you absolute morons.

One more word on Snyder before I do, Murthy, which is I just wanted to pose a question, which is Kagan, remember, was pretty hard on the government during the oral argument. And we had this fear that this might be like a 9-0 or 8-1 opinion, as many of the corruption cases that we talked about a couple of minutes ago were. But this one is 6-3. And it honestly feels to me like Jackson's dissent was so good that she might have persuaded Kagan. And I'm not sure where Sotomayor was coming out of argument, but at least Kagan to change her vote. Does that seem right? It's definitely a possibility. I thought Justice Kagan was hard to read during the argument.

She was definitely pressing the federal government on like where's the dividing line, but also seemed to think. But she also wrote the opinion in the Bridgegate case. Like she definitely has been skeptical of some of these anti-corruption statutes. So anyway, if not, I don't know. That Jackson of dissent is amazing. I'm sure Jackson, Buttonholder, and Lake Girl, burrito bowls? Seriously? And Kagan was like, you're right.

Which side of this are you on? Yeah, you're right. Okay. So bottom line is, you know, Snyder increases state and local grift and graft because people who take illegal gratuities and avoid making explicit agreements and using the magic words of quid pro quo could get off scot-free, which the closing line of Justice Jackson's dissent describes as functionally indistinguishable from taking a bribe. Yeah. And scot-free is a matter of federal law. There is still the possibility

of state and local prosecution, although when push comes to shove, the Supreme Court, I think, is going to declare some of this conduct constitutionally protected from any prosecution by whatever level of government. But at least for now, this opinion applies only to the federal statute. I'm waiting for the decision where the bribe is merely political speech. Yeah, the bribe is First Amendment. Yeah, I think we're literally like halfway down that path. We're going there, getting there. Stay tuned. Murphy v. Missouri was decided today.

This is the jawboning case where a group of individual citizens and states sued various parts of the federal government, including the Surgeon General, the White House, the FBI, and others, on the ground that the federal government had coerced or strong-armed social media companies into censoring their content. And in particular, this was around COVID misinformation or social media posts criticizing COVID policies, as well as election denialism and misinformation. So in this case, Barrett for a 6-3 court tosses the case on standing grounds. So in certain respects, this is similar to the Miffa-Pristone case, right? Gets dismissed on standing grounds. We'll talk a little bit more about sort of why, but just to say one thing at the outset, I think that the outcome in this case has very important forward-looking implications, which is that the district court had initially issued this incredibly broad injunction that

would have prevented the federal government from communicating at all with social media companies. Now, the Supreme Court lifted that injunction, so it's not in effect now. But if it had somehow allowed some kind of injunction like that to go into effect, that would have really hamstrung the federal government's ability to communicate with social media platforms, in particular around the upcoming election, around things like election misinformation. And that could be genuinely, incredibly dangerous to prevent the federal government from having these conversations. And this standing dismissal means that at least in the short term, the federal government is not going to be constrained in its ability to have these communications with social media companies. And the bottom line of the court's standing analysis was that the plaintiffs in this case

hadn't shown that their injuries were traceable to or caused by anything the federal government did, and therefore any future injuries or any future censorship was not likely to recur because of the federal government. So what Justice Barrett says is, quote, this evidence indicates that the platforms had independent incentives to moderate content and often exercise their own judgment. To be sure, the record reflects that the government defendants played a role in at least some of the platform's moderation choices, but the Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence, end quote.

There was also a really important footnote, because while the court said the plaintiffs didn't have standing and therefore didn't have to address the merits of what the district court and Fifth Circuit concluded, and those courts said, you know, the federal government violated the First Amendment. Here, Barrett drops a footnote and says, quote, the Fifth Circuit relied on the district court's factual findings, many of which unfortunately appear to be clearly erroneous, end quote. And then it goes through some examples. And that if you look at the examples, they seem to suggest that these justices in the majority also think the courts were wrong on the merits of the First Amendment claim too.

All right, so this is not a unanimous decision. There was a dissent. Justice Alito wrote a dissent in which Justices Thomas and Gorsuch joined. In that dissent, Justice Alito characterized this case as, quote, one of the most important free speech cases to reach this court in years. So much for hyperbole. Anyway, he also noted that, quote, what the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vulo, but it was no less coercive. And because of the perpetrator's high positions, it was even more dangerous. It was blatantly unconstitutional. And the country may come to regret the court's failure to say so. Officials who read today's decision together with Vulo will get the message. If a coercive campaign

is carried out with enough sophistication, it may get by. This is not a message this court should send. And just to remind listeners, NRA versus Vulo is a case that the court earlier decided unanimously in which it reinstated a lawsuit that was brought by the National Rifle Association, the NRA, alleging that Maria Vulo, a New York official, violated the NRA's First Amendment rights when she urged banks and insurance companies in New York not to do business with the NRA in the wake of the Parkland 2018 shooting. This dissent by Alito is really conservative grievance on steroids. It relies on Jim Jordan's weaponization of government House committee report. It says, quote, all these victims simply wanted to speak out on a question of the utmost public importance, end quote.

And I also wanted to point out that the dissent repeatedly cites all of this government speech, including tweets, in order to establish the merits of a First Amendment claim, even though if you think back to many years ago, or maybe not so many years ago, the court's hesitation to consider the same when Trump's travel ban was challenged on the ground that it violated the First Amendment because it was motivated by anti-Muslim animus. And there, you know, courts were reticent to consider statements, including tweets by Donald Trump, in order to assess the First Amendment claim there. I mean, the Alito opinion is just like luxuriating in these offhand remarks by Jen Psaki during press briefings. I

mean, there is so much absurd invocation of all of these statements. And you're right, Leah, it's pretty conspicuous that in other contexts, the court is like nothing to see here when it comes to government speech. That actually was a striking part of the Alito dissent. I mean, it's so anti-Biden administration. I mean, sort of like this guy was keeping a burn book for the whole of the pandemic of stuff the Biden administration was doing from. Can I say one thing? I haven't I haven't had a chance to like go sort of line by line through this but there I think it's right it's very there's individuals who are named repeatedly

Biden officials President Biden and then there's like a gauzy invocation of oh an earlier government and there's a mention of 2019 so he's much less interested in naming and shaming Trump administration officials it's it's it seemed conspicuous on my quick read. I think that's exactly right. It has a kind of Fox grandpa quality to it. I mean, it's just very like just anti-anti-Biden. I don't know if like it's a tea leaf sort of thing, but it did make me wonder when I read it, like, what does the immunity decision look like exactly if, you know, he's like so clearly naked in his distaste for the current administration. Yeah. Well, if he writes anything, I'm so curious. But, you know, there's no rush.

Take your time, guys. Okay. So just one more small point to make about this case, which is that I think that the majority opinion has declared that we can still call the platform formerly known as Twitter, Twitter, which we basically still do. But the Supreme Court agrees. So let me just read a quote that says, since the events of this suit, Twitter has merged into X Corp and is now known as X. For the sake of clarity, we'll refer to these platforms as Twitter and Facebook as they were known during the vast majority of the events underlying the suit. OK, so fine. This is a backward looking description, but I think it's essentially the court telling us it's fine.

Amy Coney Barrett is. His mama called him Twitter. I'm a column Twitter. Yeah. Yeah. She occasionally makes an okay point. I think we have to give her that. So bottom line, you know, yet another Fifth Circuit decision that is reversed, also reversed on standing grounds like the Mifepristone case, like a recent case on Biden's enforcement guidelines for immigration, like the Indian Child Welfare Act case. You know, this season on SCOTUS or maybe last season and the season before, you know, cleanup on Fifth Circuit seems to be one of the running themes. OK, so before we go, just wanted to highlight a couple of pieces of non-SCOTUS but really

important legal news. And one is a pair of district court decisions on one of President Biden's recent student loan forgiveness programs. So these district courts are actually, maybe surprisingly, not in the Fifth Circuit. One is in Kansas. One is in Missouri. But these are two district courts. Nebraska, which killed Biden's larger loan relief effort. So this new effort is known as SAVE, the Savings on Valuable Education program. And these two district courts, although in different ways, both relied on the major questions doctrine to invalidate aspects of this new loan forgiveness plan, which really, I think, is as clear a confirmation as you could want of just what deregulatory chaos SCOTUS has created with this doctrine. Yeah. And the opinions themselves are pretty messy. And I think further underscore what a shitshow the major questions doctrine is.

So both opinions concede that here the SAVE plan is not novel, right? The federal government has done loan restructuring and forgiveness under this statute before. The statute is HEA. One decision even quotes a passage from the Supreme Court's debt relief case in Biden versus Nebraska saying this law, HEA, unlike the Heroes Act, which was the one at issue in Biden versus Nebraska, authorizes forgiveness. The decisions don't explain why this particular loan forgiveness program was politically significant. They invalidate different parts of the program for different reasons. The Kansas court concedes the statute authorizes the program, but because it's too expensive, strikes it down. It says in the court's view, the secretary's longstanding

interpretation of the statute is the correct one. It's just really wild and messy. And I think all goes back to the weirdness of major questions and what the Supreme Court opened up with that. We have long warned you listeners that the major questions doctrine has been will continue to be a kind of stealth, unpredictable weapon that's just lying in wait. We've said this from the time when SCOTUS first announced this over, I guess it's been two or three years, I guess, West Virginia versus EPA. Well, the doctrine, of course, has like slightly older origins, but in terms of the term, yeah, it's just, it's very, very recent. Yeah. So this is really just the latest evidence of how it can sort of just lie there in plain

sight, ready to strike down hugely popular programs that would greatly improve people's lives, programs that have enormous popular support. That might be interesting as sort of majoritarian democracy kind of question. And they just strike it down for reasons. And as Leah and Dan Deacon have pointed out in their really excellent article in the Virginia Law Review on the major questions doctrine, a lot of the major questions doctrine is just really, really subjective and arrogates a lot of power to this court to decide what is a major question, when is something significant enough to warrant this kind of intervention, and not a lot of answers, but lots of authority for the court.

Right. And in addition to subjective, the doctrine seems to say anything agencies do that's big and consequential is presumptively suspect. And actually, the district court judges in these two cases are Obama appointees. These are not Trump judges, but they're taking their marching orders from a Supreme Court that is so deeply skeptical about anything agencies do that is big. You know, they're applying what the Supreme Court has essentially given them. So then just a quick beat on cert grants. And we wanted to mention two important cert grants. One is the Scrimeti case, which is a case we've talked about before. It involves a Tennessee law that bans gender-affirming health care for trans kids. A Tennessee district court invalidated the

law. That's also happened in a bunch of other states, Arkansas, Alabama, Florida, Georgia. But in this case, a divided panel of the Sixth Circuit reversed, reinstated the law, and the Supreme Court has agreed to hear it. And, you know, I understand why the cert petition was filed in this case. The Sixth Circuit opinion in this case left a horror show on the ground for trans kids and their families. But it is also really worrying to contemplate what the Supreme Court is going to do with this case and this question. The court also granted cert in Even County Infrastructure Coalition versus Eagle County, Colorado, a case that asked whether the National Environmental Policy Act allows federal agencies to consider climate change and environmental impacts beyond

the immediate scope of a proposed project. And so that seems like a place where maybe the court will get its teeth into environmental law and make it less environmentally. This is more Earth, you endanger girl material, for sure. Earth, you endanger. Anyway, so that's what's been going on. We just continue to wait, like Captain Ahab for the big ones. So keep waiting. And for the Supreme Court to perhaps officially announce its latest gift to the Republican Party in the form of the EMTALA decision and deferring it until after the election. So definitely stay tuned for that. Well, two gifts.

This is Justice Thomas's birthday week. We might get a gift to President Trump or former President Trump. We might get a gift to the Republican Party more generally, but all conservative. Another gift we already have. The delay itself is already as huge. I know you we've all said an enormous gift. This trial was supposed to happen March 4th. It is now the end of June.

There is already the biggest imaginable gift the court has given to former President Donald Trump. Yes. But be on the lookout for those takes that suggest the Supreme Court permitted emergency abortions and, you know, moderate consensus. Be the reply guy and the comment girl and the non-binary responder, because like, that just ain't right. Okay, that is all we have for today. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah

Littman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Our interns this summer are Hannah Saroff and Tess O'Donoghue. Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroat is our head of production. And thanks to our digital team, Phoebe Bradford and Joe Matuski.

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