Strict Scrutiny - SCOTUS’s Endless Beef with the EPA

Episode Date: October 21, 2024

Melissa, Kate, and Leah recap October at the Supreme Court, diving into the sewage-infested waters of City and County of San Francisco v. Environmental Protection Agency. What did clean water ever do to Brett Kavanaugh? Also recapped: cases about the judicial review of immigration visas and veterans benefits. Finally, the hosts finish off with a peek at what’s going on in state courts around the country. 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're your hosts. I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Lippman. And last week, the Supreme Court wrapped up its October session,

the first session of the new term. And Mother Earth, you're already in danger, girl. So to explain how, we're going to spend a good portion of this episode breaking down the big environmental case the court heard last week before briefly touching on the other cases that were also argued. Then for our court culture segment, we'll discuss some cases in other courts, one appellate case decided by the Sixth Circuit, a district court decision on political speech out of Florida, and then also some state court developments, one on voting rights from Nebraska, another on reproductive justice out of Florida, and then also some state court developments, one on voting rights from Nebraska, another on reproductive justice out of Tennessee, and some recent voting developments out of Georgia. And we will finish up by discussing the passing of a major figure at SCOTUS.

So for listeners who are following this issue, we do know that the Fifth Circuit heard oral arguments in a challenge to the DACA, that's Deferred Action for Childhood Arrivals program, about a week and a half ago. We do plan to cover that argument in our November preview, so two episodes from now, when we talk about pending cases that could be affected by the election. So stay tuned for that conversation. But on this episode, first, some breaking news. The first thing we want to highlight is an order from Judge Tanya Chetkin, who's, of course, the D.C. District Court judge who is presiding over the federal election interference case against the former guy, Donald Trump. In that order, Judge Chutkan rejected Trump's efforts to block public disclosure of the appendix to Jack Smith's

bombshell 165-page immunity brief, which we discussed two weeks ago. The brief is already public, and as we've said, it's quite a read. And read in the drag queen sense, like the library is open and Donald Trump kind of got read. But Trump's team, not surprisingly, argued that because of the upcoming election, Judge Chetkin should deviate from the ordinary presumption of public access to information in criminal proceedings and keep the entire appendix sealed until November 14th. Trump's team argued that the unsealing of the appendix would poison the jury pool and that it wasn't fair for the public to see Smith's evidence, but not Trump's,

and that this quote unquote asymmetric release of charged allegations and related documents during early voting creates a concerning appearance of election interference, end quote. The irony. Well, Judge Chukin seemed to appreciate that irony because she was, to put it mildly, not impressed by these arguments. She wrote that, quote, there is undoubtedly a public interest in courts not inserting themselves into elections or appearing to do so, but litigation's incidental effects on politics are not the same as a court's intentional interference with them. End quote. of releasing it, that withholding could itself constitute or appear to be election interference, end quote. I love how she's like so close, but exactly 180 degrees wrong are your arguments. And so no. So Trump's request gets denied. The appendices were unsealed on Friday. And to the

kind of asymmetry point that Trump's lawyers were making, Chuck had made clear that he could accelerate his own timetable, right? His next round of briefs are due on November 7th. But if he's concerned about asymmetric information being on public display, he can file his arguments and present his facts earlier than that if he wants the public to see them. Like, let's see that great evidence, Donald. Let's see it. Totally. And I have a hunch we're not going to. So at the time of our recording, only one of the appendices was actually accessible and it was heavily redacted. So we actually don't really know any more than we knew from the brief itself. There were a few different versions of a memo that had described the Electoral Count Act as, quote unquote, likely unconstitutional, end quote. Not a lot of theory behind that, not a lot of evidence, but, you know, a lot of vibes. So I guess that's fine. There was also

some memos that mocked how there could be, quote, howls, of course, from the Democrats, end quote, in the event that Mike Pence refused to certify the votes, which is actually really interesting because Colin Allred at a recent debate with the gentleman from Cancun mentioned that the gentleman seemed to be really interested in stymieing the counting of the votes and also hiding in supply closets. But can we just pause and say he was, Allred was so good in that debate. Oh my gosh. He really crushed it. It's my student. Colin Allred, Berkeley Law grad.

So good. He was prepped and ready. And the moments on election interference, abortion, he was ready and could communicate to the message and loved to say it. Cruz, slightly less so on all of those scores. Again, I'm just like, if you're listening, All Red team, you are missing an opportunity by not referring to Ted Cruz as the gentleman from Cancun and also invoking justice for Snowflake. Yes. That's true. That's one critique. I don't think any invocations of Snowflake during that debate. Other than that, 9 out of 10. Missed opportunity.

No real notes. Yes. But back to the brief. Sorry, that was a Colin Allred appreciation interlude. Sorry. Back to the redacted appendices. In one rare moment of self-awareness, there is a writing that is disclosed that described the plan to interfere with the counting of the votes as admittedly, quote unquote, bold in all caps. Yes, fellas, that's what we call a coup, BOLD. When you're cooing, it's definitely BOLD. There was also a redacted text exchange about getting documents on the congressional floor. And I don't know, I'm a little curious to see more in that vein going forward. So unseal everything, personally. Indeed. So we also wanted to talk through some developments out of Texas. A Supreme Court issued a stay of execution. But no, it wasn't the United States Supreme Court. So late Thursday night, the Texas Supreme Court issued a stay in the case of Robert Roberson, who was convicted and sentenced to death for the killing of his two-year-old daughter on the basis of since discredited shaken baby syndrome evidence and theories. The lead detective on Roberson's case now says Roberson is innocent and a bipartisan group of Texas legislators had

looked into the case and expressed doubt about the conviction and sentence. Yet, despite those important developments, SCOTUS refused to issue a stay of execution on Thursday. And Justice Sotomayor wrote separately to urge the Texas government to grant a rep unusual move, took this unprecedented step of issuing a subpoena or maybe a summons for Roberson's testimony. And after the Texas Court of Criminal Appeals initially declined to intervene, late on Thursday, the Texas Supreme Court issued an order preventing Texas officials from preventing Roberson from complying with the subpoena, presumably including by going forward with this execution date. So this means in the short term that the case goes back to the lower court for consideration of the legislative subpoena, presumably including by going forward with this execution date. So this means in the short term that the case goes back to the lower court for consideration of the legislative subpoena. The execution, of course, does not go forward in the immediate. All of this implicates questions

of state separation of powers. Which means that now the United States Supreme Court is actually to the right, and maybe decidedly so, to the right of the all-Republican Texas Supreme Court on this question of the death penalty. So, wow, that is something. Chris Geidner's Lawdork newsletter did some great reporting on this case. So if you want to learn more about Robert Roberson in this case, be sure to check out Chris's Substack. And now on to the recaps. First up, the Supreme Court's conservative supermajority tries to figure out which it hates more, the EPA or liberal bastion San Francisco. It's a toss-up. Right. Well, it's not so clear it The Supreme Court heard the toss-up. Right.

Well, it's not so clear it's going to be a toss-up, unfortunately. So the Supreme Court heard the big Clean Water Act case, city and county of San Francisco versus EPA. The question in the case, as we said in our last episode, is how exactly did the EPA violate the law this time? The relevant statute is the Clean Water Act, which requires entities that discharge pollutants into United States waters to obtain permits. And the law authorizes the EPA to impose conditions on those permits that include, quote, effluent limitations for point sources, end quote, but also, and this will be important, quote, any more stringent limitation, including those necessary to meet water quality standards, end quote. So the city of San Francisco operates a combined overflow system that emits pollutants into the Pacific Ocean, which is among the navigable waters of the United States for purposes of the Clean Water Act, at least until someone finds a theory that excludes the shoreline of the Pacific.

The Pacific Ocean is unconstitutional. Exactly. Actually unconstitutional. Or at least not subject to the protections of the Clean Water Act. So the EPA issued a permit to San Francisco for their discharge, and the permit conditions prohibited discharges that, quote, cause or contribute to a violation of any applicable water quality standard. And the permit also barred the creation of, quote, pollution, contamination, or nuisance as defined by a provision of California state law. As the lawyer representing the EPA noted at the argument, the permit conditions were imposed because San Francisco's system, quote, is resulting in gallons of sewage being poured into San Francisco's beaches, resulting in sewer backup in homes and businesses.

But honestly, what's a little raw sewage between friends? When we say the Supreme Court has gone to shit, we're referring to this case. Anyway, San Francisco argues that these permit conditions violate the Clean Water Act because they impose narrative limitations that are too vague and don't impose specific limits on pollutants or provide for specific procedures for improvements, as the law, they say, requires. The issue here is how specific does the EPA have to be when it is issuing permit conditions under the Clean Water Act? Can it impose prohibitions that make permit holders liable when they cause water quality standards to go below a certain level? Or does it have to identify the specific amounts of permissible or impermissible discharges?

To put it in plain language, in imposing the permit conditions, is it okay for the EPA just to say, hey, don't kill the species of fish with your discharges? Or, hey, don't allow the water quality levels to dip below X amount? Or does the EPA have to be more specific than that and tell the polluter, hey, it's okay to discharge one gallon of poop, but no more than that one gallon of poop. Do you hear me? justices truly think that Congress passed the Clean Water Act to protect polluters. Also difficult to overstate the extent to which the Republican justices think the real victim in the current situation that involves gallons of raw sewage being dumped into the ocean is that the people dumping said gallons of raw sewage into the ocean are the victims, or at least the people that could prevent said dumping, they are the victims, you know, not planet Earth, not the people who have to live with said sewage, but the entities allowing the sewage dumping. And the Republican appointees hate the EPA so much, they're convinced the real victim here is San Francisco. that Congress created and amended the Clean Water Act in part because in a world without

specific regulations, it's really difficult to impose liability on polluters, which is to say that Congress, when it enacted the Clean Water Act, was responding to concerns about a regime where there weren't precise and specific rules about exactly how much and what kind of pollution could give rise to liability under the act. And the city argues that Congress created the permit system that instructs the EPA to tell polluters exactly what they have to do to avoid liability under the act to respond to those concerns. And according to the city, when the Clean Water Act mentions effluent limitations, that's Congress directing the EPA to tell polluters exactly what they can discharge or exactly how they have to structure their discharge systems.

But the problem with the city's argument, as Justice Kagan tried repeatedly to explain to her junior varsity colleagues, her head was literally exploding. I think we said last week or the week before that we were worried she seemed a little deflated or tired. I didn't get that at all in this argument. Like she had real mother of dragons energy throughout. But anyway, her point is that you cannot read the legislative history of a statute that broadly to say the Clean Water Act's purpose was to impose more specificity and then infer that the agency is prohibited from promulgating general standards for water quality. That's just not how this thing called textualism is supposed to work. So whatever is in the legislative history or whatever is in John Roberts' idiosyncratic notion of the battle days to which he referred repeatedly, that, you know, in his view, the statute was supposed to respond to that. This statute explicitly authorizes the EPA to impose, quote, other limitations, not just effluent limitations, which would seem pretty clearly to encompass the kinds of broader prohibitions to which the city is subject. It also seems relevant that Congress amended the Clean Water Act to require compliance with a

specific program that contained general prohibitions rather than specific effluent limitations, which is a point that Justice Jackson underscored. And if, as it seems likely, the Republican appointees are just simply going to declare in very broad strokes that these water quality standards aren't the kinds of limitations that Congress intended for the EPA to promulgate, notwithstanding the provisions of the statute that we just mentioned. Justice Kagan made clear that this was going to happen over her dead body. She was not going to go quietly into the polluted, sewage-infested waters of the San Francisco Bay at night,

as you can hear in this montage of clips. So let's roll them. Ms. Seeley, I mean, there are lots of different kinds of regulations in the world. Some people like some kinds. Some people like other kinds. Some regulations are really prescriptive. Do this, this, this, and this. And then, you know, some people hate those kinds of regulations. They'd rather have regulations that are less prescriptive that say, here's the goal. You decide how to meet it. That gives a party more flexibility and so forth. So, you know, some people, you know, it's – there's got to be something in this statute that tells you that the agency can't decide to go the less prescriptive, more flexible. You decide how to meet it.

This is the goal route. And I don't see anything in this statute that does that. So I disagree, Your Honor, that this provides a flexible standard. Let's talk about the statute. But what I don't hear you telling me is, like, what in the statute prevents the EPA from doing this? But, of course, 1C does not talk about effluent limitations. 1C just talks about limitations. 1A talks about effluent limitations. 1B talks about effluent limitations. You were adding a word to 1C to get effluent limitations there, weren't you?

No, I disagree that we're adding a word. So you're definitely adding a word because there's only limitation there. Basically, fuck whatever the statute says. The Republican justices are just saying, watch us do some magic textualism. And Justice Kagan is like, I got a different rabbit that I'm going to pull out of my hat. How about that? We will get to the magic part in a bit. But we should note that when the lawyer representing the city of San Francisco took the podium, some of the Republican justices seemed a little confused about which side they should hate, the EPA or San Francisco. San Francisco received some skeptical questions from both Justices Thomas and Alito. But then they remembered, oh, yes, that's where the

Bohemian Grove meets. I like that place. I like that place. It's not in San Francisco, right? No, it's near San Francisco. You've got to fly into San Francisco, though. You have to traverse San Francisco to get to the Bohemian Grove. You might need to drink some water while stopping en route to the Bohemian Grove. But I guess that's not enough to make them worry. Nobody wants GI distress at the Grove. Nobody wants that. At the Grove, but evidently they're fine with it it or maybe they just bring their own bottled water in. In any event, yeah. So there was this discomfort among some of the Republican justices about the possibility of ruling for San Francisco, even if that did mean sticking it to the EPA again and some more.

And at one point, the EPA's lawyers seemed to feel this energy and to lean into it. Basically, like, you're right, fellas. This is all San Francisco's fault. So let's play that clip here. Mr. Liu, you said at one point that you lacked the information necessary to provide a more specific provision than the provisions that are in question here. But is there anything that prevented you from obtaining whatever information you thought you needed? Yes, San Francisco. Under this statute, San Francisco... You have no ability and the state has no ability to require them to produce any information. We did require them. We

issued information requests under 33 U.S.C. 1318A. But the Republicans got over their discomfort with ruling for liberal loving San Francisco once the EPA stood up and they remembered, yes, this is who we really hate. You know, ladies, forget Donald Trump as your protector, keeping you safe from quality health care that might be necessary to save your life, your health or your fertility. Get you someone who will defend you and stand up for you the way that Brett Kavanaugh will stand up for shit dumping polluters. Because really, you know, I don't think Brett Kavanaugh will stand up for shit dumping polluters, because really, you know, I don't think Brett Kavanaugh has been this mad since he was scream asking Senator Klobuchar if she had a drinking problem during his confirmation hearings. He was absolutely

incensed about the supposed unfairness to polluters when the EPA doesn't tell them exactly how much they can pollute. So roll that tape here. You know, some of these standards are not as specific. Marine communities shall not be degraded. The odor of fish shall not be altered. It's hard to know. I mean, to take the first example, Justice Kavanaugh. It's just hard.

I'm not looking for comment on the specific example. It's just hard. This clip was just incredible to me because, you know, a shorter version of this. I'm not looking for a comment. I just like to make a speech about justice for polluters. That's not how Supreme Court arguments are supposed to work, right? The justices just making these statements about their principles. And yet Kavanaugh was just explicit about this. And

it seemed to me like while the rest of the country watches Mudang TikToks, you know, Brett Kavanaugh is watching videos of companies or cities dumping sewage into the waters and thinking, ah, nature is so soothing. So I pull up the occasional Mudang video just like on the internet, but I didn't realize Mudang was all over TikTok. This might be a reason to consider dipping back into TikTok, which I rarely do. But Mudang's getting big, which makes me sad. Mudang is getting big, she says. Mudang is big, has been big for a while.

Has been big. Okay, so I've watched just the baby, baby videos. Where you have been living. He's not like mom, big as his mom, though. He's still a little, right? And we don't mean in size, Kate. It's a baby it's a baby i'm saying he's bigger than he was when he was oh i was saying i'm sad that his size is increasing because he was so little initially okay okay good i'm glad you clarified that because we were gonna have to like go and have an intervention and yeah

we're gonna have to like discover this super secret baby hippo. Hippo. Did you guys know about this hippo named Mudang? Did you know about Mudang? Entirely plausible. But in fact, I did know. I was see I'm so aware that I have charted Mudang's growth physically, not in like likes or follows. Only you would have Mudang on a growth chart.

Yeah. I just, you know, I want Mudang to have to be able to swim and grow in clean waters is what I'm saying. And Brett Kavanaugh, in fact, is not. Justice for Mudang. Yes. Not the polluters. So there was some effort by the federal government to kind of push back against Kavanaugh's justice for polluters sort of through line. And, you know, his efforts to depict the supposed unfairness to the polluters that this entire regime reflects.

So maybe let's play that clip here. You're suing San Francisco separately for a lot of money based on a standard that they had no idea. You know, that's the theory. That's the theory in your position. Your position would allow that. I don't think so. I mean, the Bayside complaint is exhibit A for why what you said is not going to be true. The standards that are violated in those cases are numeric water quality criteria. And at one point, so that's the federal government responding. And then there was a point at which Kavanaugh's solicitude for the polluter class.

Pollutertocracy, if you will. Was just like too much stupidity for Justice Kagan to handle. So let's roll that tape. The Pacific Ocean. I see. And if this issue of like we don't know what we're supposed to do, it's horribly unfair. And you think, well, they've really not come up with any particular way in which that's true. I mean, I thought that most of these were something like this.

There's a California water quality standard that says, waters shall not contain floating material in concentrations that adversely affect fishing and swimming. And it turns out EPA says that notwithstanding that standard, San Francisco has left lots of toilet paper floating in Mission Creek. I mean, that's not a we don't know what to do issue. Like, we know you're not supposed to leave toilet paper floating in Mission Creek, don't we? That's right.

And that's one example. There are plenty of others. I mean, there might be examples where they don't know something, although they haven't come up with any. But there are plenty of examples. I could go on and on. There are plenty of examples where it's obvious. You know, don't like spew the arguments and smart people rose to the top. And it's just endlessly frustrating to her to be reminded that that is not in fact the case because that exchange was just 911. I'd like report a murder, like a body has been found in a pool of brown water. Chief Justice Roberts, you have the opportunity to do the funniest thing ever,

assign the majority to Coach Kavanaugh. And then we will keep our fingers crossed that the dissenters give it to Justice Kagan, and she will murder this whole argument and him again and again and again some more. It's the only thing keeping me going after this argument is thinking about that. This argument was so brutally stupid. I mean, speaking of brutally stupid, Coach Kavanaugh wasn't the only Republican appointee to take a body blow during the argument. So let's roll the tape of Justice Jackson absolutely bodying Justice Gorsuch. If that's the case, then I guess I'm kind of circling back to the Chief Justice's question, and really maybe administrative agencies generally.

The point was to give people notice ex ante of their legal obligations rather than rely on tort, ex post, nuisance law. I'm a little surprised by the suggestion that the goal of the statutory permitting process here was fair notice. I thought the goal was to ensure that there were clean waters in the United States and that that was not actually happening under the previous regime, and so Congress was giving the EPA additional tools to effectuate that result. It seems that a mutual respect for the rule of lenity will only get you so far when one of you is spewing absolute nonsense. Or BS. Lesson learned.

The honeymoon between those two felt like it was over in that argument. I mean, I think it's true that they have like points of convergence, but this is clearly not one of them. And just to kind of underscore the insanity of Gorsuch here, he is literally saying, and Kavanaugh alluded to the same thing earlier, that the whole point of the Clean Water Act is to help polluters. And KBJ is like, I read the words, Neil, it's called the Clean Water Act and not the Safe Harbor for Polluters Act. And she's actually right. And again, because this is a court that professes an interest in history and tradition, maybe this history will be instructive. The Clean Water Act was enacted in 1972 in response to a series of absolutely horrific water pollution events that

took place in the 1960s. So there was in 1968, a survey that revealed that the pollution levels were so bad in the Chesapeake Bay that fishermen suffered millions of dollars in lost revenue because they couldn't sell the polluted fish. And there was a 1969 study that found that bacteria levels in the Hudson River were 170 times the legal limit. The same year, pollution from local food processing plants killed 26 million fish in a Florida lake, which was the largest fish kill on record at that point. And most famously, water pollution caused an enormous oil slick that resulted in a fire on the Cuyahoga River in Cleveland, Ohio. It's hardly surprising that when liberal squish Richard Nixon established the EPA in 1970, just two years before Congress enacted this Clean Water Act, it was understood that dealing with the growing issue

of water pollution was going to be a major part of the agency's charge. But again, history and tradition only works when you're trying to protect a gun and not protect women. But water pollution, I don't know her. Right. So who's going to let historical facts get in the way of hobbling administrative agencies? Definitely not one Neil M. Gorsuch. True to his EPA. Say his whole name, Kate. What is it? Neil McGill Gorsuch? Neil McGill. That is a man who. What is it? Neil McGill Gorsuch? Neil McGill. That is a man who wants to pollute.

Neil McGill Gorsuch. M. McGill. I think either way. Yeah, this is his true passion and also aligns with his true EPA villain origin story. He could not resist taking yet another opportunity to press the case against agencies, both EPA specifically and more generally. So let's play a clip and then explain it. No, I'm just asking as a practical matter, if we're essentially saying don't create a nuisance and EPA sets the standard as opposed to an expert witness, what value has been added?

He is asking, as if it were a rhetorical question, why on earth would we want an agency to decide if polluters polluted the water too much and caused harm to certain species? Why not just have a lay jury do it, right? They could hear from an expert and it would be the same. And he is asking this at the time when non-delegation petitions from the federal government have arrived at the Supreme Court. You know, the non-delegation petitions from the federal government have arrived at the Supreme Court. You know, the non-delegation doctrine, to remind listeners, challenges the idea that Congress may delegate to administrative agencies the power to make rules governing private parties. So the non-delegation doctrine is not a thing. It's not the law. It was invoked by the Supreme Court twice

in 1935. But because Clarence Thomas would like to make non-delegation great again, two court of appeals have insisted that non-delegation is in fact the law and invoked the doctrine to invalidate two federal programs. And the Solicitor General has asked the Supreme Court to review those decisions, which again could be the first step of the Supreme Court actually reviving the non-delegation doctrine. Why would the Solicitor General do that? Just because you can't allow those decisions to stand? Because what they've done is these courts have revived the non-delegation doctrine in their circuits.

And when they do that, they are potentially vacating a rule nationwide. So I don't think the Solicitor General really has a choice here. So you know who also doesn't have a choice? Planet Earth. Right. And clean drinking water. You're all in danger. Poop and polluters, you'll be fine. And I just want to pause over how ridiculous this timeline has become. Like we we are debating whether the EPA can, under the Clean Water Act, impose water quality standards it has determined are necessary to stop billions of gallons of sewage from being dumped into the ocean.

It's just that, like, every year the court is doing something weirder, right? They're overruling Roe. They're nuking student debt relief. Then they're declaring the president is, you know, above the law and entitled to absolute immunity. And I've talked about this before, but I was working on a book last year about the Supreme Court.

And I remember when I was going through the stages of talking to publishers, it was like, OK, well, yes, the Supreme Court overruled Roe. But are they really going to do anything else crazy? And then they nuked student debt relief. And the question is, OK, well, so they nuked student debt relief. Are they going to do anything crazy?. And then they nuke student debt relief. And the question is, okay, well, so they nuke student debt relief. Are they going to do anything crazy? And now it's presidential immunity. And now it's can San Francisco throw billions of gallons of shit into the ocean and we're just going to pretend that's okay. And so if you want to hear more about this endless devolution of the court into madness, you can actually pre-order my book now. We'll put the link in

the show note. It's called Lawless. So it will be out in June whenever the Supreme Court does the next insane thing, which appears to include, again, blasting gallons of shit being poured into the ocean and declaring that the Clean Water Act meant to protect that. I mean, again, it's just the stupidest of timelines. It's not just a stupid timeline. It's so to protect that. I mean, again, it's just the stupidest of timelines. It's not just a stupid timeline. It's so meta. Like, I mean, this is a court that's like literally shitting on people.

It's going to shit. Everything is going to shit. The one silver lining in this cursed, cursed timeline that we are living in is that you get to buy and read Leah's book to help you make sense of all of it. It's true. We get to listen to her all the time

and we feel better. So I think you might want this on your nightstand. If you're looking around, you're like, why is that water so brown coming out of my faucet? Let me consult the book. It will explain why it's Neil Gorsuch's fault. So always. Anyway, stepping back a little, we wanted to note something that the Democratic appointees also floated at oral argument, which is that to the extent these conditions may seem too confusing or somewhat unfair, San Francisco actually has a number of avenues to challenge them beyond this particular challenge, which seems intent on blowing up water quality standards across the nation. So for example, San Francisco, if they thought these restrictions were too confusing or unfair, could challenge them on

the ground that they are arbitrary and capricious. If they thought that the EPA didn't have good enough reasons to adopt general water quality standards rather than specific effluent limitations, San Francisco could also do that through an arbitrary and capricious challenge. If the issue is that the standards are too vague, San Francisco could challenge their vagueness on vagueness grounds. Doesn't necessarily have to pursue this path, which, again, involves trying to wipe out water quality standards writ large, hobble the Clean Water Act and hobble the EPA. Yeah. So surprising no one. The conservative justices, you know, the ones who allegedly at least this is like their, you know, mythology, restraint and judicial minimalism. Turns out it's bullshit. Maybe always was. It definitely is. In the water. Right. So they

do seem very inclined to completely disregard all of these possible off ramps, to disregard kind of acknowledging that San Francisco very explicitly chose not to take these more modest routes to potentially getting some relief that doesn't involve blowing up this entire set of standards. But it is possible, I suppose, that a majority could say something like you can only do these like permits like this only under certain circumstances. They could limit the EPA's authority without wiping it away entirely. That, based on what we heard at argument, may be the best we can hope for, which is a very, very bleak place to be. I mean, I have to say I'm a little disappointed in San Francisco. And I just want

to note, Oakland would never. It is a sad state of affairs because they could have challenged these on other grounds. And they did do some of them in the lower court, but then they didn't ask the Supreme Court to take up any of them. And it seems like they could have, should have done so, because you know the court is going to rule against the EPA, right? The only question is how they violated the law. So why not offer the court up a narrower ground that doesn't call into question the EPA's ability to adopt these clean water standards, which are sometimes necessary, as the federal government lawyer noted, if you don't have the specific information that allows you to adopt more specific rules about particular

polluters. But this is where we are, the stupidest, shittiest of timelines. Let's quickly recap some of the other cases on that note. One of the cases the court heard last week was Buarfa v. Mayorkas. This is a case about judicial review of immigration determinations. Federal law, the Immigration and Naturalization Act, governs the availability of visas, and it requires DHS, Homeland Security, to reject visas under certain circumstances, which are known as non-discretionary denials. And courts can review those non-discretionary denials, but they cannot review discretionary decisions. Immigration law also provides that after a visa has been approved, Homeland Security, quote, may revoke the approval,

quote, at any time for, quote, what the secretary deems to be good and sufficient cause, end quote. The question here is whether you can get that judicial review when a visa has been revoked based on a reason that would supposedly be grounds for a non-discretionary denial. That is, if the visa had been denied in the first instance for this reason, you could have gotten review. The question here is, if the visa has been revoked for that reason, can you still get review as you would for a non-discretionary denial? Amina Bouarfa filed a visa petition on behalf of her husband, who's a non-citizen, and USCIS, which is the Citizenship and Immigration Service, approved the petition,

but then later revoked that approval after finding that Borfa's husband had previously entered into a different marriage for fraudulent purposes. Ms. Borfa filed a complaint in district court seeking review of that determination. And the question is whether she can get review of that revocation because it would have been, if it were in a denial posture, a non-discretionary denial. This was, in all respects, a pretty short argument, and it wasn't entirely clear which way it seemed like the court would go, although it seems like the government is likely to prevail here, maybe because it's immigration. The only justice who seemed to obviously be on Borfa's side was Justice Gorsuch. Some of the justices' uncertainty about the case focused on whether the existence of a sham marriage was actually a non-discretionary ground for denying a visa. And some of the

justices seemed concerned about a related sort of perverse consequence of that argument. So they were concerned that saying that the existence of a sham marriage is a non-discretionary basis for rejecting a visa would mean that the agency could never exercise discretion and waive that as a reason to reject a visa. But there also seemed to be resistance to the petitioner's statutory argument. And as we said when we summarized the case, the INA's revocation section is generally quite discretionary. It's the initial approval slash denial section where there is a good amount of non-discretionary language. And so there was some discomfort with just importing the mandatory language into the discretionary section based on the idea that it would be odd to be able

to obtain review as to the initial approval or denial, but not as to the revocation. But that oddness isn't normally a reason to overlook statutory language, especially if there may be, as was floated in the argument, some plausible explanation for treating the two scenarios differently. The court also heard oral argument in medical marijuana versus horn. And this was a case about damages under the RICO statute. That's the Racketeer Influenced and Corrupt Organizations statute. The question here is whether economic harms resulting from personal injuries are the sorts of injuries to quote unquote business or property by reason of the defendant's acts under RICO. So RICO gives private plaintiffs a cause of action to recover trouble damages for injuries to

business or property when those injuries occur because the defendants have committed certain RICO offenses. But RICO excludes recovery for personal injuries. Here, Douglas Horn, who's a commercial truck driver, consumed Dixie X, a product that the petitioner, Medical Marijuana, advertises as being THC-free. THC is the psychoactive component in marijuana. A drug test, however, detected THC in Mr. Horn's system, and he was fired from his job. So Mr. Horn sued Medical Marijuana, the manufacturer of Dixie X, arguing that his lost wages, and really the loss of his job, was an injury to business or property, and namely his business, driving the commercial truck. So Lisa Blatt argued for petitioner medical marijuana, and Isha Anand argued for Douglas

Horn. And it seemed as though the justices, I think a majority of them probably, were skeptical of medical marijuana's position. And that prompted some characteristic, character-filled moments of Lisa Blatt talking to the justices like they're normal people, which in some ways respect and I love. At other times, it led to some interruptions or weird exchanges, particularly between Lisa Blatt and Justice Kagan and then between Lisa Blatt and Justice Jackson. So the justices' skepticism came from two directions. One was the sense that loss of a job is an injury to a business. A job is someone's business, so a purely textualist skepticism. Petitioner medical marijuana seemed

to concede that in some instances, the loss of a job or a workplace could constitute an injury to a business or property under RICO, like if someone extorted you out of a job or blew up your workplace. That's the Artie Bucco, Rico, from The Sopranos. Yeah. But medical marijuana seemed to want to exclude injuries to business or property that were caused in some sense by a personal injury or injury to a person. But here's that pesky textualism rearing its head once again.

That's not really what the statute says. And then Justices Sotomayor and Kagan and Jackson articulated a second basis for skepticism about medical marijuana's view that injuries that are caused by personal injuries are excluded from recovery, even when they are business or property injuries. And they really emphasized that what medical marijuana was objecting to was whether the alleged RICO violation, like mislabeling, caused the plaintiff's injuries, specifically the employer's decision to fire him. But as they noted, that causation question is a separate question from whether the injuries

are to the plaintiff's business or property as required by RICO. Right here, as in any RICO case, the plaintiff has the burden of establishing causation. And that causation question really wasn't before the court. It would have to be sorted out in the case eventually on remand. And Isha Anand, who again argued for Horn, the employee, conceded that it might be an uphill battle and her client might lose on that issue, but that that wasn't the issue that the court was faced with deciding. Yeah. So it's not entirely clear how the case is going to be resolved. Some of the Republican justices, like the chief, seemed concerned that RICO plaintiffs could plead around the exclusion of personal injuries by recasting them as injury to

business or property. But as the Democratic appointees pointed out, if they can do that, that's because Congress drafted the statute to exclude only certain types of injuries, not particular ways in which injuries are caused. And in any case, the requirement that plaintiffs show proximate causation that the defendant's actions caused their injury could take care of many of the cases that the Republican justices seem concerned about. So here, for example, it's probably going to be difficult to establish that medical marijuana's marketing of Dixie X caused Horn to lose his job when there's an independent decision by a third party, the employer involved here. There was an interesting moment where the Chief Justice appeared to confuse one of his colleagues with the late Antonin Scalia.

He referred at one point in the oral argument to Ishanan's dialogue with, quote unquote, Justice Scalia. And that raised some eyebrows. You know, maybe it's just spooky season upon us. And the Chief Justice is like Haley Joel Osment, seeing dead people everywhere that could happen. Or maybe it's just a credit to Isha, who is such an effective advocate that she is actually capable of communing with justices in the great beyond. Either way, a notable slip of the tongue. It was weird. And I mean, I just felt like there was a moment, a beat of silence, and no one said anything to correct him. And he hadn't even realized the mistake. It was weird. And I mean, I just felt like there was a moment, a beat of silence and no one said anything to correct him. And he hadn't even realized the mistake. It was

really quite strange. But Isha was amazing, as she has been in every argument we've heard from her. So she just was unfazed and pressed on. But it really did. She's like, let me get my Ouija board. Hold on. Let me see what he says. But it was like between that weird slip up and the fact that he thought his immunity opinion would stand the test of time, right, rise above politics, the things that we know from the Times reporting he believed in completely deranged fashion would happen, would receive his immunity decision. It's really like there seem to be some signs that John Roberts is not necessarily at the very top of his game in this moment. The court also heard oral argument in Buffkin v. McDonough, and Mel Boswick appears to be headed to a win in a veterans' benefit case. She previously argued George v. McDonough, and she has been successful in a string of lower court cases on veterans' benefits. She is literally a veteran on veterans' benefits.

The question in this case is whether the veterans' court must ensure that the Department of Veterans Affairs, the VA, properly applied a statutory rule in deciding the availability of veterans' benefits. Federal law requires the VA to give, quote, the benefit of the doubt to a veteran claiming disability benefits when there is, quote, an approximate balance of positive and negative evidence. In reviewing a VA benefits determination, the Veterans Court must, quote, take due account of the VA's application of the benefit of the doubt rule. And the question here is whether this due account provision requires the Veterans Court to independently assess whether the VA correctly applied the benefit of the doubt rule, or it instead authorizes only clear error review. The federal government argued that the Secretary's decision is only reviewed for clear error and that veterans cannot get the court to independently review the decision. And there seemed to be concern in the argument

that this would make the due account provision meaningless, something several justices brought up. And that is the October sitting, the first sitting of October term 2024. It is going to be a long ass term. And on that positive note, let's discuss some court culture. I'm sure things are going great in all the other courts in the United States. So let's check in on my home circuit, the Sixth Circuit. In a previous episode, we mentioned different state court decisions on whether Robert F. Kennedy Jr.'s name would remain on the ballot in states after he withdrew from the election late in the game, you know, in many cases after some ballots were already printed. And one of those states was in Michigan, where the Michigan Supreme Court ruled that under Michigan law, RFK was not entitled to

have his name wiped away from the ballot at this late stage of the game. So naturally, RFK was not entitled to have his name wiped away from the ballot at this late stage of the game. So naturally, RFK decided to go to federal court to ask them to get his name off the ballot, arguing that it violates his First Amendment rights to send a message that he wants to be a presidential candidate when he does not, in fact, want to be one, and that that First Amendment interest overrides Michigan's interest in the orderly conduct of presidential elections. You know, ballots have already gone out in Michigan. Hundreds of thousands of ballots have been returned. We're less than a month from the election. Ladies, a bear would not do this to democracy. Always choose the bear. Another reason to choose the bear.

I'm your favorite reference baby, the bear. So Kennedy, who loves democracy far less than the bear, was unsuccessful before a panel of the Sixth Circuit. And when he sought rehearing on bank, the court denied, but by the narrowest of margins. And some Sixth Circuit judges wrote separately to basically say, yeah, let's do this. And their claim is that Purcell, which is a general principle that courts should not upend election administration on the eve of elections doesn't bar this intervention because the Michigan ballots are themselves confusing. And of course, this is an argument that never seems to have any purchase with this kind of judge when applied to confusing

voter ID laws or confusing precinct rules or whatnot. But they also say that the Michigan Supreme Court got Michigan law wrong. And just like cherry on top that the Michigan Secretary of State, who was, by the way, a professor of election law before becoming the Secretary of State, is unilaterally changing the rules and potentially the outcome of the election. And, you know, so all these Michigan officials were obviously proceeding, not sufficiently mindful of the overarching rule of election administration, which is that only Republicans get to do things that advantage them and change the outcome of an election on the eve of an election or maybe any time.

But I mean, the good news is that RFK kind of chaos monster did not manage to upend the election in the state of Michigan. But it is terrifying how close it seems like he got. Yeah. Let's now turn from Michigan to the Nebraska Supreme Court, which invalidated an effort by Nebraska state officials that would have disenfranchised tens of thousands of people with prior felony convictions. Nebraska is an electoral, I don't know, polar coaster right now. There's a tight Senate race this cycle in Nebraska. And of course, this is a state

that doesn't use a winner-take-all model for its electoral college votes. Nebraska has five electoral votes in the electoral college, and two come from the state at large. But then one comes from each of three congressional districts. So there's a lot of activity in Nebraska, particularly in the little blue dot districts where Democrats might be able to pull an electoral college win or get an electoral college vote. So all of this makes Nebraska a place to watch right now. And apparently the Nebraska legislature and the Nebraska Republicans know how hotly contested this is because the Nebraska legislature enacted a law that automatically restored voting rights to

individuals who had completed their sentences. But then the Republican AG in Nebraska issued an opinion saying that the legislature's new law violated the Nebraska Constitution. And for good measure, he said that another law from 2005 also violated the state constitution in re-enfranchising individuals. The Republican Secretary of State then prohibited election officials from registering any person whose voting rights would have been restored by those laws. Again, an election battleground state where there are a number of electoral votes that don't necessarily go with the entire state but can be peeled off and might go to different constituencies again. And you all of a sudden discover that this 20 year old law is unconstitutional. Now would be the time not to

enforce it. So weird. So weird. Yeah, this matter reached the Nebraska Supreme Court who basically said, no, definitely not. You know, only we the Nebraska Supreme Court declare laws unconstitutional Republican attorneys general and secretaries of state don't, you know, the opinion asked, quote, Do we want to live in a world where every state employee who has a hunch a statute is flawed gets to ignore it? Did you hear that the Electoral Count Act might be unconstitutional? Likely unconstitutional. Same energy. Same energy.

Yes. Yeah. So now Nebraskans who were re-enfranchised actually could register. But as Justice Lindsay Miller Lerman, who's been on that court for many years, pointed out, the Nebraska Supreme Court issued this opinion and order so late, after months of consideration, that after the order, there were just two days left of online voter registration and nine days left of in-person registration. So while the court ultimately rejected the state's blatant partisan effort at disenfranchisement, it also partially rewarded that effort through the timing of the decision. It's almost like they took a page from the U.S.

Supreme Court on the immunity decision. I learned it from watching you, Dad. I learned it from watching you. Exactly. Fish learned it from watching you. names begin? Or was it a mere coincidence? Question mark. Love the Taylor reference. Love the notes about procedure. And, you know, it concludes with noting it is most unfortunate that this court encourages this apparent scheme. Legendary. I, yeah, just legendary. You know, we've been aware of Justice Miller-Lerman for a while. I'm very happy that we've had a chance, we now have a chance to mention her in that epic writing. And, you know, as a practical matter, it's just a really important point. There had been so much that rules had changed. People were understandably concerned that they might run afoul of the law after having finished their sentences if they just tried to participate in, you know, self-governance. And I hope that the on-the-ground forces in Nebraska aren't going to mobilize quickly enough and the people are going to be comfortable enough to actually come forward and register. But obviously, like, these insane games by state officials have quite deliberately undermined, like, meaningful broad-based participation. And it's like,

when the Nebraska legislature, which is a conservative body by supermajority, decides to re-enfranchise people who have completed their sentences, it's just insane that the executive branch tried to thwart it the way they did. Your point about the confusion, again, this is sort of part of the Dobbs, post-Dobbs landscape. Like this same playbook can be deployed in any number of contexts. It's not just abortion where you sow confusion and make it hard for people to understand what their rights are. Like the one place where it might actually really count right now in voting, the same playbook is being used. Like make it a weird and confused landscape and then people are deterred from doing what they might actually be allowed to do. All right, speaking of states that we have to just

deal with, if anyone's going to talk shit about Florida, it's going to be me. So let's turn to the Sunshine State. Florida men had appallingly been threatening television stations that aired ads that were supportive of Florida's reproductive rights ballot initiatives. Florida officials, including the Surgeon General of Florida and the Department of Health and the Department of Health's General Council told television stations in the Sunshine States to remove political ads supporting the amendment, Amendment 4, or they would face criminal prosecution. And if that sounds to you like a bit of a First Amendment problem, then don't bother going to law school. You might as well just be a lawyer and maybe you should go down to Florida and be the general counsel of the Department of Health. The creators of these advertisements sued these officials and they asked a court to stop these blatant efforts to violate the First Amendment. And a district

court in Florida said, yes, this seems like it violates the First Amendment and issued a temporary restraining order telling the Florida officials to stop threatening people for exercising their actual First Amendment rights. And in the words of this absolutely epic and legendary order, quote, to keep it simple for the state of Florida. And that's really important. Keeping it simple for the state of Florida and its officials. It's the First Amendment. Stupid. End quote. And check that into my veins. I love that. I love the order. It was horrifying what Florida was trying to do here. But it is very much a part of a pattern of Republican officials basically fighting democracy and trying to undermine democracy when the issue of voting on reproductive

justice actually comes up. I mean, obviously, you two wrote about this with respect to like the Supreme Court's failure to safeguard the democratic process that they then handed the issue of reproductive justice over. But then we've seen these state level efforts of people trying to keep ballot initiatives, you know, off of the ballot, like in Michigan, or trying to increase. Yeah, right, exactly the percentage of people who have to ratify a ballot initiative in Ohio, and now these efforts in Florida, and it is, again, just making very clear that this was never about just letting democracy play out. It was about control.

Let me just say, I do love the Sunshine State. I was raised in Florida. I am not the one making it Florida. It is the Surgeon General, the General Counsel, the Department of Health. So I just want to make that clear. All of my ire is directed at these dudes who literally want to just suppress anything that's antithetical to their position. So that's the Florida of which I complain, not the otherwise beautiful Sunshine State with incredible humidity that made me think I had curly hair for far too long.

All right, moving on to Georgia, where we actually had two very positive developments in the courts in the last week or so. First, a Georgia trial court blocked a controversial new rule that was issued by the state election board and that would have given local election officials the power to block certification of votes at the county level. Judge Robert McBurney, whose name may be familiar because he also struck down the state six-week abortion ban back in September, although that was a short-lived order, wrote in this case regarding the certification of votes, quote, if county election board members were free to play investigator, prosecutor, jury, and judge, and so because of a unilateral determination of error or fraud, refused to certify election results, Georgia voters would be silenced. Our constitution and

our election code do not allow for that to happen. So at least for now, that rule, which again had been wildly controversial from the moment it was issued, is not in effect. McBurney also invalidated a rule issued by the same state election board that would have mandated hand recounts of Georgia ballots. His opinion reasoned that this was a new requirement, true, that was slated to take effect after voting had already begun, also true, and without any training or any extra budgetary allotment provided to do this work, and that all of this was thus likely to result in what he called administrative chaos, also true, that would be totally inconsistent with an obligation to, quote, ensure that our elections are fair, legal and orderly, end quote.

That is Robert McBurney staring in Purcell and writing this particular opinion. But here too, right, you can just draw parallels to this isn't just happening in Georgia. Republican officials and, you know, groups affiliated with the Republican Party are trying to undermine the sound counting of votes and election administration elsewhere. You know, we talked about the effort where RFK Jr. wanted Wisconsin officials to put like a little sticker over his name on the ballots, and that would have interfered with the ability to accurately count ballots in Wisconsin, thereby also undermining the ability to actually conduct a fair counting of votes and clearing

the way for possibly more shenanigans. So, right. Okay. Speaking of good state court decisions, we also got a decision out of Tennessee. A three-judge panel of the Tennessee Chancery Court ruled that several women who were denied abortions under Tennessee's restrictive abortion law should have been able to receive abortions. This case, Blackman v. Tennessee, is like the Amanda Sarofsky case out of Texas. It sought to clarify the medical exemptions that are available under Tennessee's abortion ban, and the court granted the plaintiff's request to block the state from enforcing its abortion ban as applied to certain pregnancy complications

and fetal diagnoses, thus allowing providers to offer abortion care in those instances without fear of being criminally prosecuted. To be clear, this doesn't invalidate the state's abortion ban. It is just a narrow ruling that says only the doctors can't face criminal liability for providing abortion in certain medical emergencies or lethal fetal diagnoses. We should also note the passing of Lily Ledbetter, who became a kind of unlikely feminist icon and a champion for equal pay. And if her name sounds familiar to you, it's because you likely heard of her through the Supreme Court case that bears her name or the statute that followed the Supreme Court case that bears her name or the statute that followed the

Supreme Court case that bears her name as well. So in Ledbetter versus Goodyear Tire and Rubber Company, the Supreme Court ruled against Lidley Ledbetter when she sued her employer for pay discrimination. And in an opinion by noted feminist Samuel Alito, who appeared to just be warming up for Dobbs, the court held that you can't review a pay discrimination claim if the claim was based on decisions made by your employer 180 days or more before you filed your claim. And in this situation, Ledbetter had received negative evaluations early on in her time at Goodyear for reasons that she said were rooted in sex discrimination. And because of those negative evaluations, her pay never reached the level of similar

male employees. So her paychecks continued to reflect, she said, gender discrimination, gender discrimination that she never actually knew about because she didn't know what her colleagues were getting paid. So she was being substantially docked and didn't really know. Yeah. So the court rejected that theory, finding that the amount of time she had to actually bring her claim under law started, like the clock started around the time of the evaluations or the original discriminatory action, like not on the basis of subsequent paychecks that incorporated set evaluations and that reflected discrimination. This really was, you know, this was early Sam Alito, right? Like this was when he was still sort of like he was beginning to fully embrace like the full diabolical Sam Alito.

This was, I think, the first full term that he was at the court. He had come on board about a year before. I started cutting my teeth by keeping women out of Princeton. But then when that didn't work, I decided to go to Goodyear and do this. And, you know, here we are all living with the fallout. But Justice Ginsburg, right, sort of knew who she was dealing with, I think, from very early on. So she was rip shit in this dissent that she wrote. But she was also constructive in that she was furious about the court's error. But she also kind of turned her attention to Congress, urging them

to amend Title VII, which is the part of the Civil Rights Act that deals with employment discrimination, and urging them to explicitly allow plaintiffs like Ledbetter to recover for pay discrimination in the way she thought the statute already allowed, but to make it explicit. And Congress, in the halcyon days when inter-branch dialogue really happened, responded. So it passed the Lilly Ledbetter Fair Pay Act. Congress enacted the law. It was the first law that President Barack Obama signed in 2009 when he was newly inaugurated. And, you know, it was an enormous moment and a victory. And she became this, again, like Melissa said, sort of unlikely face. She never sought the public eye. She was just an employee who brought a lawsuit that really did change things for many, many people. And she passed away last week. Rest in

power, Lily Ledbetter. May her memory be a blessing. So a few notes before we head out. It has been a wild ride for Empire City, the untold origin story of the NYPD. We've dived into the militarization of the force, the policing of abortion in the early days of New York, and the very first investigation into police corruption. But as NYPD news continues to break, we know there's so much more to uncover. The series finale of Empire City dropped today, so make sure to follow Empire City wherever you get your podcasts. You can binge all episodes now and enjoy ad-free listening by joining Wondery Plus in the Wondery app or on

Apple Podcasts. As we approach a pivotal election, the choice between Donald Trump and Kamala Harris will affect more than just what happens in the United States. It will reshape our approach to global politics. On Pod Save the World, co-host Ben Rhodes is breaking down the implications for global democracy and foreign policy in a new special election series airing each week from now through Election Day. You can find the series every Saturday until November 5th in your Pod Save the World feed or on YouTube. production hosted and executive produced by Leah Littman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. 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 Matosky. You can subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com forward slash at Strict Scrutiny Podcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps. Terima kasih.