Strict Scrutiny - Self-Own Sam

Episode Date: November 15, 2021

Professor Lisa Eskow joins the podcast to discuss some Justices’ willingness to engage in ecclesiastical whack-a-mole in Ramirez v. Collier. There are also birthday wishes, Big Bird (and other birds), kale shops, and more! 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, Taylor's version, your podcast about the Supreme Court and the legal culture that surrounds it. Melissa, don't roll your eyes when I write the introduction. I get to put in what I want. We're your hosts. I'm Leah Littman. And Melissa,

you're on mute. I think she's protesting that introduction, actually. I was protesting. I'm Melissa Murray. I'm Kate Shaw. And today we're delighted to be giving you a special episode with a very special guest. Our episode today is live over Zoom at the ACS chapter of the University of Texas Law School, the most abstract of entities itself. So hook them horns. We are so delighted to be abstractly in Austin. And we are excited to be joined by Professor Lisa Eskow, clinical

professor and co-director of the Supreme Court Clinic at the University of Texas Law School. Welcome to the show, Lisa. Thank you so much for having me. And I would like to say I'm also a day one listener. So I'm just fangirling out quite a bit right now, but I'm going to try to maintain my composure and contribute something. Awesome, Lisa. Well, it's great to have you. And we are so happy to be taping the show with all of you in part because Texas, despite again, being fundamentally an abstraction, looms really large over the court this term. So I should say, unless there is breaking news in the next hour, which could always happen, this will be the rare show these days in which we don't spend time talking about Texas SB8,

but we will go deep on another case out of Texas, Ramirez versus Collier. And we're also going to talk about the other cases the court heard this week. And this week, we're actually going to reverse the order that our show typically follows. We're going to start with recaps. So Lisa doesn't have to stick around, although Lisa, you're welcome to for our possible discussions of Big Bird the Prolegandist, which may or may not be part of our news segment at the end of today's episode. But first, happy release day for Red Taylor's version and the 10-minute version of All Too Well to all who celebrate. Congratulations, Taylor. We know that you also are a day one strict scrutiny fangirl. And I think this is what happens when you're a day

one listener. You become empowered, you take back your masters, and you wreak havoc on Scooter et al. And you are invited to join the podcast along with Justice Kagan. So these are the perks. Yes. Justice Kagan, Regé-Jean Page, and Taylor Swift. And Meghan Markle, the Duchess of Sussex. All right. Wait, Leah, do you want to, before we get into the court, can we see if Leah has any like initial impression? I listened to part of it this morning with my kids who are huge fans and it sounded great to me, but I feel like you've probably listened all the way through like many times by now. So what's number one?

Yes. So it's definitely going to be number one on my Spotify, you know, watch list of 2021. The 10 minute version of All Too Well is basically a song within a song, from what I can tell. The cut lyrics contain different melodies and a way more intense vibe. I needed Taylor Swift saying, fuck the patriarchy, basically for the last however many years of my life without even knowing it. And she just did it. And I needed it now. It's wonderful. Now is when I give a special, I don't even know what,

to Marty Lederman, who called it on Twitter mediocre. Marty, you're canceled. And we'll talk about this later. I also love Nothing New. That duet with Phoebe Bridger is just amazing. Maybe the post-show Q&A with audience will get deeper into the rest of the album. Melissa's beginning to lose patience. All right. On with the show. I'm not losing patience with you. I love Taylor Swift. Yes. Okay. Let's do some recaps, though, because you know what I love as much as I love Taylor Swift? Religious Liberty Week at the court. And it was Religious Liberty Week at SCOTUS. Leah released a special episode

last week with Alihan Al-Rulananthatham recapping FBI versus FASAGA, the case in which the Supreme Court, which we understand is very committed to protecting religious liberty, will decide whether a district court can dismiss claims of religious discrimination if the government invokes the state's secret privilege. And we're not going to revisit all that, but I will just say for our listeners, that was a great discussion. Everyone should listen to it. Ayalon was, as you said, Leah, fantastic in the oral argument, and I thought it was just a great kind of recap discussion. So everybody run and listen to that. In addition to Fazaga, the court also heard another religious liberty challenge in Ramirez versus Collier, the case we briefly previewed last week. Ramirez involves a

challenge to Texas's execution protocol. And so Lisa, this is a perfect opportunity to get your expert take on this. So can you explain for us what that protocol is, as well as the religious liberty challenge to the protocol? Sure. So Texas has a, it's really a booklet. So it started in 2012, about 10 pages, it grew to 15 pages in 2019. The 2021 version is a 20 page booklet that covers everything from what happens once an execution date is set in terms of notifying family members, what you do with your prison bank account, what happens to you when you get to take a shower, what clothes you wear, what food you get to eat. And part of it also addresses

what happens in terms of religious practice or religious exercise at the prison when an execution takes place. And the current version of the policy, which took effect on April 21st, 2021, allows a spiritual advisor who can be either a TDCJ chaplain or spiritual advisor or an outside spiritual advisor to accompany the inmate and the prison officials into the execution chamber. And the content of the procedures as relates to religious liberty

and as relates to spiritual advisors is something that has changed quite a bit. So for many, many years and decades across over 500 executions, there was always a spiritual advisor in the execution chamber and they were praying and they were touching the inmate throughout the entire execution procedure until the person passed away. Then after the Supreme Court in 2019 decided Murphy versus Collier, and Murphy involved a Buddhist inmate who wanted to have a spiritual advisor of that faith present, that faith wasn't represented in the chaplains who were there. And so, you know, Justice Kavanaugh threw out the notion that you can't discriminate amongst faith, but maybe you just don't let

anybody in. And Texas thought, wow, that's an awesome idea. And five days later, changed everything, enacted a policy where nobody was allowed in. A bunch of challenges to that ensued. And then again, they switched on April 21st, 2021 to the current one. And the challenge that's at issue here has to do with while Mr. Ramirez's pastor,

Pastor Moore, is present in the execution chamber, can he lay on hands and physically touch Mr. Ramirez? And can he pray over him out loud as opposed to silently in his head? That's really helpful. And you just described Texas having made some changes to kind of its protocols in this regard. You know, when we did the preview of the case, we noted a striking passage in Texas's brief in which the state actually accuses Mr. Ramirez of playing what it describes as ecclesiastical whack-a-mole, right? Suggesting that Mr. Ramirez was like inventing different religious claims in order to delay his execution.

And that, you know, Texas just had, I presume, to like whack down those objections. We were like actually pretty shocked by the language, the analogy. Anyway, so we raised some questions about whether Texas's characterization of Mr. Ramirez's religious claims might strike the justices as insufficiently neutral toward religion and even maybe rise to the level of animus toward religion in light of what the court has said was, in other cases and other contexts, insufficient neutrality toward religion in light of what the court has said was, in other cases, in other contexts, insufficient neutrality toward religion or, indeed, animus toward religion, like, for example,

in Masterpiece Cakeshop v. Colorado Civil Rights Commission. And we mentioned this briefly in the last episode, but in that case, the court said that a Colorado civil rights commissioner's statement that religion had been used to justify, historically, all kinds of atrocities and that if a religious provider wanted to do business with a state, they had to comply with neutral state rules, that these claims evinced animus toward religion, right? And so we thought, huh, maybe the justices are going to be actually troubled by the suggestion in Texas's brief. And yet those concerns seem to be a little less present from the oral argument than we anticipated they might be, right? Like, you know, in fact, some of the justices themselves seem to channel, maybe even to double down on Texas's characterizations of Mr. Ramirez's

religious claims, and maybe themselves play a little like ecclesiastical whack-a-mole, animus free, right? I'm sure, but ecclesiastical whack-a-mole themselves. So, Leah, what did you make of the justices and how they played this game? Yeah, so just listening, it seemed to me like there were no less than three different ways that the justices approached this case, which involves a person sentenced to die that seemed to differ from how they had approached other religious liberty challenges. So I'll maybe list them and then we can talk about them more in depth individually. So first, there seemed to be some willingness to question the sincerity of Mr. Ramirez's religious beliefs, which I thought was a no-no. Second, there seemed to be some hesitation from the justices about whether they were equipped to second-guess the state's interests behind its policy and whether the state's interests could be accomplished in other ways, which if I'm remembering correctly, the court actually

made part of the legal test for First Amendment free exercise claims on the shadow docket just last year. And then third, some justices were extremely concerned about whether recognizing this religious liberty claim might invite other religious liberty claims down the road and potentially require the court to decide them, even though the justices had basically dismissed those same kinds of concerns as irrelevant in previous religious liberty challenges. And then finally, this isn't really about religious liberty claims in particular, but I still think it's important to highlight, there seemed to be this striking consensus among the justices that the death penalty is a, quote, fraught circumstance, and that there is a compelling interest in ensuring that the risk that anything goes wrong in an execution is zero.

And listening to them repeatedly make this claim, I could not help but think, you know, John Marion Grant, or for that matter, Dominique Ray, would like a word, you ghouls. I will say more about Grant and Ray later, but I was really incredulous at them just embracing this idea that, of course, executions have to be zero risk and risk-free when they have basically squelched very legitimate challenges to execution protocols that we have seen raise serious questions about whether executions would, in fact, proceed regularly and without incident. So can I ask, Lisa, what did you make of just sort of who was talking and what they had to say? Justice Barrett seemed slightly sympathetic to the prisoner, Justice Kavanaugh and Alito less so. And then Justice Gorsuch was absolutely silent. I don't

think he asked a question at all during oral argument. So what do you think about how all of this shakes out? And what does it say about the cohesion of the conservative bloc? It was very interesting to listen to the different description of compelling interest, the one posed by Justice Kavanaugh, who was saying this, you know, race to the bottom and you have to have a zero percent risk and that's legitimate. And then Justice Barrett pushing back against that and saying, if you can always just say, I want zero percent risk, then that means you can always turn away any request that has any risk. And we already know from the Lupa that that's not what you're allowed to do. You have to be able to recognize some exception unless there's absolutely no way to accommodate your interest in security or in the safety of the execution or whatever you're going to posit at that point. And so I think they're pulling and pushing at each other. There is going to be a very pivotal aspect of what ends up happening in this case. It was also,

I mean, you've already brought to light the fact that both doctrinally and honestly, factually, in terms of the record, there was this bizarre disconnect in terms of how religious practices have been treated, how the sincerity of reliefs have been treated, and what you do with the state's assertions of its interests from prior cases. And honestly, from this record, it was very strange to hear people talk about Mr. Ramirez's last minute requests when this is something he had been litigating for well over a year. I mean, he tried to litigate it twice. The state said, please cancel your lawsuit. We'll cancel your execution date.

He says, OK. And then when they reset it, he immediately is pursuing his rights at every turn as they continue to change their policy. And he's trying and he's filing step one grievances and step two grievances. And they are saying things officially in policies and then they're saying things in emails. And it was just very strange to see questions that reflected a lack of willingness or unfamiliarity with the record. And then also this disconnect with past practices doctrinally. Well, I mean, I'm going to say, Lisa, the first rule of ecclesiastical

whack-a-mole is to forget past practices and past decisions. And I think we saw, and you mentioned some of them, some really illuminating... The first rule of ecclesiastical whack-a-mole is never to discuss Hobby Lobby, Never to talk about Hobby Lobby. Which, by the way, we're going to break repeatedly in this episode. I love a Fight Club reference. Kate, do you know what we're talking about? We don't talk about Fight Club. I got it. I got it.

Oh, good, Kate. You've been spending a lot of time this weekend. Hashtag personal growth. You know, movies, I'm actually, okay, on movies. Television, I'm terrible. Except for Sesame Street, which I think we're going to talk about. I've got small kids. I do know my Sesame Street. But yeah, no, TV, reality TV, I don't got.

But movies, I'm okay. All right, back to Ecclesiastical Whack-A-Mole, is to question the sincerity of an individual's religious beliefs, but obviously in an animus-free, secular way. So here are some illuminating moments from the oral argument, specifically from one of our favorites, Justice Clarence Thomas, who straight out of the gate suggested that Mr. Ramirez was, quote-unquote, gaming the system. Let's hear from Justice Thomas. We're talking about Mr. Ramirez. Now, if we think that Mr. Ramirez has changed his requests a number of times and has filed last minute complaints that as and that is and if we assume that's some indication of gaming the system, what should we do with that with respect to assessing the sincerity of his beliefs? And then we have another clip of Justice Thomas because he was

really on board with this. So here he is again, sort of pressing the idea that perhaps Mr. Ramirez's claims are not sincerely held. Yeah, but you have people filing grievances in non-religious contexts, and that's not evidence of their religious beliefs. It's evidence that obviously they don't obviously don't want to be executed. And they and in some instances, they're gaming the system. Justice Thomas, though, was not alone in pressing this idea that Mr. Ramirez's beliefs were not sincerely held. And again, we're part of this game of ecclesiastical whack-a-mole. Justice Kavanaugh has also played this game and he wanted to get in on it as well. And so he again reiterated the state's concern that death row inmates are simply trying to delays on their claims in order to delay executions.

At least that's the state's concern. This is probably the most revealing statement from Justice Kavanaugh, where he later clarified that he was not questioning any religious clerics' beliefs. No pastors were being questioned here, just the inmates who were lodging religious claims. So let's play that clip here. Sorry to interrupt. I'm not questioning the current pastor at all involved in this case, so I don't mean to do that. And not to be left out of all of this ecclesiastical whack-a-mole, always animus free, always secular action was Texas Solicitor General and strict scrutiny fanboy from day one, Judd with two Ds, Stone. He made clear that he thought the mere proximity to the execution date conclusively proved

that the prisoner's religious beliefs were in fact not sincere, but animated by a desire to delay the possible execution. Here he is. He had a conversion experience. I suspect impending death focuses people's concerns on religion in a way they may not have been before. And with death imminent, he decided he needed this, needed to pursue this route to salvation. On just those facts alone, Your Honor, it would sound to me that with nothing else, that the individual might be

seeking delay of his execution because several days beforehand he's requesting a multi-month process. A few justices and the state itself and actually also Eric Fagan, who's the deputy solicitor general who is arguing for the federal government in this case as amicus, all seemed to be suggesting that it is completely fine to question the sincerity of a religious belief when someone comes to court and says the state is doing something that violates my religious beliefs or faith. And I couldn't quite believe what I was hearing, right? Like, I just kind of seemed to remember, I don't know, some justices telling me that wasn't allowed. And specifically, right, that the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act, or LUPA, right, that the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act, or LUPA, right, that's the statute at issue in this case, are what prohibited it, right? Am I crazy? So here's where I release a statement called a statement from Leah Littman on Justice Thomas and Justice Alito's ignorant, hypocritical treatment of religious liberty

claims with a hat tip to Kyle Bragg, who has inspired me. Okay, we're blasting that out as a press release. Oh, we were definitely doing this. Oh, yeah. No. But more seriously, let's flashback to the year 2014, when we had some individuals and entities claiming that a government policy violated their religious beliefs. And we were also told that Arlupa prohibited courts from questioning their religious beliefs. Specifically, let's read the following passages from Burwell versus Hobby Lobby, since we are not adhering to the first rule of ecclesiastical whack-a-mole.

Wait, Melissa, do you want to read them? You're getting excited. Do it, Melissa. This argument dodges the question that RFRA presents whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs, and instead addresses a very different question, that the federal courts have no business addressing whether the religious belief asserted in a RFRA case is reasonable. Should we go on? I'll read another one. So, arrogating the authority to provide a binding national answer to this religious and philosophical

question, HHS and the principal dissent, in effect, tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. I'll add, the Hans and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulation lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. I'll go on. And what is most relevant for present purposes, Arlupa amended Riffra's definition of the exercise of religion. In Arlupa, in an obvious effort to affect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the exercise of religion to include any exercise of religion, whether or not compelled by or central to a system of religious belief. And Congress mandated that this concept be construed in favor

of a broad protection of religious exercise to the maximum extent permitted by the terms of this chapter and the Constitution. So those were the written words of Samuel Alito. But as I previewed in the Fasaga episode with Ahilan, a fun game I played to make myself just even more enraged and horrified about what was happening in the Ramirez argument is that I went back and listened to the Hobby Lobby argument. And so let's hear Sam Alito respond to these claims that courts can question the sincerity of people's religious beliefs. So here's Sam Alito from 2014. Didn't it also adopt a provision in Ralupa saying that the exercise of religion was to be interpreted in the broadest possible way? This is the part of the podcast where I wish we could do GIFs. And right here would be where I would have Melody insert a GIF of like Joan Collins from Dynasty going, I have the receipts.

We do. It is the truly galling nature of the double standard and selectivity and hypocrisy. I really could not believe it as I was listening to and reading the transcript because, you know, I don't doubt that they in their heart of hearts believe that there is prevalent discrimination against religious believers. I don't doubt the sincerity of their religious beliefs. And so I just thought that they would afford and apply those same principles to other religious claims. And they just seemed so unable to do that. It was honestly shocking even for me, even though in the last episode we were kind of joking that, of course, they wouldn't show the same concern here as they did about the words or language from Masterpiece Cake Shop. I still didn't think it would be this bad. I totally agree. I

thought they would at least be cross-pressured. This is a maximalist court when it comes to religious liberty most of the time. And obviously, a majority of this court is very eager to rule against individuals raising claims, challenges to methods of execution and other circumstances surrounding the administration of the death penalty. So I just thought they would be a little stuck and you would hear sort of sympathy for each of these kind of objectives, greasing the wheels of the machinery of death on the one hand and maximizing protection for religious liberty on the other, like that there would be some tension between the two. And it was like just about greasing the wheels. Like that was the only thing they seemed moved by. We are going to pause for a brief interlude for two things.

First, the holidays are approaching. Hanukkah is crazy early this year. Christmas folks, you have a bit more time, but shipping can be slow right now. So we are so touched from the support of our fanboys, including Judd with two Ds, that we made some holiday merch to celebrate them. If you go to our website and check out our merchandise, there is a holiday 2021 line, it includes, among other things, strict scrutiny fanboy and fangirl items, it also includes some items celebrating hyperbolic and or hysterical lady parts, the tort of outrage, filing a habeas or something, and we even have a line shouting out the chief justice and his burn

on Judd with 2D's stone. My question is what we call a hypothetical. So go to our website, strictscrutinypodcast.com, and check it out. And speaking of strict scrutiny fanboys, we've learned from the wife of one of our listeners that her husband is a devoted fan of our podcast. Some might even say he is a little bit obsessed with it. She contacted us because he is having a big birthday on November 22nd, and she couldn't think of anything he'd enjoy better than a birthday wish from all of us here at the Strict Scrutiny Podcast.

So we're not sure what all of this says about the state of their marriage, but she told us that her husband, in addition to liking nothing more than a strict scrutiny birthday shout out, he often goes to sleep listening to our podcast. And when he wakes up, he regales her with details about the legal cases that we have been discussing. And he is absolutely fascinated by, and I think does not quite understand, our obsession with Regé-Jean Page. So I mean, I think the obsession is obviously understandable, but I really appreciate that this may be our first real-life strict scrutiny fanboy. So the birthday boy in question is a critical care physician,

but he fancies himself a bit of an expert on all things Supreme Court. And I have to say, frankly, we might be okay if he were actually deciding some of these cases, because as a physician, he might have a better grasp of how to deal with some of these COVID challenges. But in any event, he listens to Supreme Court oral arguments for fun. He has been known to quote passages from Supreme Court rulings. Obviously, the parts by Justices Kagan and Sotomayor get top billing. And perhaps in another life,

he would not have pursued medicine, but instead would have become a lawyer. But alas, the road not taken, but we're going to take that road on this podcast. And so it is with great pleasure that we would wish Gordon Rubenfeld a very, very happy birthday. Happy birthday, Gordon. We are thrilled to hear how much you enjoy listening to the show. And we hope you're not laying it on too thick after listening to this. But we want to wish you a happy birthday from all of us, from your wife,

Serena, and of course, from our intern, Regé-Jean Page as well. So happy birthday to you, Gordon Rubenfeld. So maybe let's move on to the second rule of ecclesiastical whack-a-mole. Separate and apart from the questioning of, you know, the sincerity of religious beliefs, there seem to be, you know, kind of an equal and opposite disinterest in or disclaiming of the permissibility of courts second-guessing states' claims that the state's policy is supported by an important state interest and that the state can't accomplish its important purpose or interest without interfering with an individual's religious beliefs. So maybe let's play a clip from Kavanaugh here on that point. But the state is saying, no, we want the risk to be low. How do we as a court say, no, actually, state, your compelling interest in reducing the risk to close to zero, it's not good enough. It's not compelling. How do we do that? Or even more pointedly, when he said, It's not my decision. As a judge, I don't know how I prioritized your assessment of that over the states. So, Lisa, I want to make sure we bring you in. I mean, you started to get into of the questions were, as I mentioned before,

very hard to reconcile with the record. So even if you put aside doctrinally a shift or whatever's happening there, we have a situation here where Texas has executed hundreds of people with spiritual advisors in the chamber, touching them and praying over them, touching them on the pulse during the execution while the lethal injection cocktail is being administered up and, you know, feeling for the pulse to stop. So engage the whole time. And they've done this hundreds of times. We've quoted in our briefs and the amicus briefs all talk about, you know, people who have sat through this, people who have touched inmates. So we know it can be done. It's the same execution chamber. It's just as small.

The practical constraints are there. And, you know, I think Justice Kavanaugh was very focused on the fact that in the past there were TDCJ. He called them employees. Sometimes they were employees. Sometimes they were independent contractors. But whatever you want to say, they were TDCJ affiliated and that that somehow can entirely change the situation. But Texas has already decided that they're okay with a non-TDCJ affiliate being in there, right? They've already said, you know what, outside spiritual advisors, we're going to let you be there. So that all disappears. And then as a matter of the record, you have the same religious conduct and the same religious behavior, the prayer out loud, the touching. And I don't understand why touching becomes something different when it's done by an outside spiritual, right? It's the same touch.

The prayer is the same prayer, the same audibility concerns. So you have a record where you have an enormous amount of empirical evidence demonstrating that they can carry out executions safely. And in fact, there's never been an incident as a result of a spiritual advisor's presence there. So many of the questions just flew in the face of this history and what's been demonstrated. And I think that was true, not only with respect to the state's interests, but also with respect to this fear of inmates abusing the legal system and coming into delay and not exhausting under the Prison Litigation Reform Act. And, you know, hypothetically, am I sure that that happens?

Yeah, I'm not going to rule out that that was never impossible to happen. But on the record here and given Mr. Ramirez, it was the exact opposite where he kept articulating, you know, in filing after filing and doing his best. And it's just very strange to have this you know, the record in which there were numerous executions in which people were allowed in the execution chamber and were allowed to pray. And that is audibly pray and also allowed to touch people in some circumstances. So let's play that clip here. What kind of requests did you reject? Your Honor, I'm not aware of any specific requests that we rejected, but my general understanding is there may have been requests that we did not. I don't want to, my concern is representing to the court that we accommodated everything that was requested of us.

I'm not certain I could make that representation, but everyone was clearly satisfied enough that we avoided last-minute litigation. There was no touching, right? There was no touching during— So if someone had requested touching, like— But there was touching in one, is that correct? There was, ma'am— It wasn't there communion given in one and use of holy oils?

Well, Your Honor, our recollection of that one is a little bit different from Father O'Keefe's recollection of it. But our recollection is there was at least some touching, but that was during the period before the administration of the drugs. And we don't think it was communion in the sense of giving someone a wafer on the tongue or anything to that effect. The point that she's making is, again, like the federal government was conducting a bunch conduct executions in which non-state employees were allowed into the execution chamber and allowed to do the very things that Texas now insists it's impossible

to do. And it was giving me Justice Kagan vibes because it was just like, no, let me correct the record. You are misstating things. You are greatly exaggerating things. It's not fair to make those inferences here. And it's just not right. So anyways, just had to say that. It's like the highest compliment I can give.

Well, yeah, I mean, that's to be compared in any way or just even evoking Justice Kagan's presence. I will take that and cherish it forever, truly. But also, you know, you mentioned that the federal government came up and she pointed to this. Right. So we have Eric Fagan there and he talked about the fact that they've in 11 out of 13 executions that they've conducted, they had outside spiritual advisors present and they were praying. And, you know, I think that there are some differences in the circumstances. But one thing he said that was incredibly striking was that, yeah, we've never had to have litigation because we actually sit down and we talk to the people we're about to kill. And we find out what it is that their beliefs

consist of, what it is they want, and are we able to work that out? And they do that in every single instance and are able to make that happen. So I thought that was also an important takeaway, in addition to just the empirical record. I want to highlight something else. And again, I think this goes back to the theme that you, Lisa, and perhaps even Justice Kagan has been highlighting, which is that you ladies, like the ladies of strict scrutiny, also keep receipts. There was a lot of discussion about the state's assertions about the execution protocol and what could and could not be second-guessed about the states. And I was sort of thinking, huh, second-guessing the states' assertions. We've heard that before in the context of ecclesiastical whack-a-mole, only the animus free, secular kind.

And I decided to go back to my file cabinet of receipts and look back to the year 2020. The Supreme Court in 2020 decided a number of cases, among them Tandon versus Newsom, which was a challenge to California's COVID restrictions. And one of the questions before the court there was whether it should second guess whether California's interest in minimizing the spread of the coronavirus, a deadly virus that prompted a global public health crisis, justified California in restricting in-home gatherings. And I will not belabor the point by reading some of these passages, but in those cases, it seemed like the court thought it was for the courts to require the state to prove with evidence, rather than just generalizations, backed up by intuition and science, that the restrictions served a compelling interest. And yet, in Ramirez, Justice Kavanaugh seemed to be throwing up his hands and saying, well, I couldn't possibly second guess the state's assertions that the plaintiff's proposed rule would involve some increased risk.

So weird, guys. Really, really weird. Puzzling. Super strange. Leah, what is the third rule of ecclesiastical whack-a-mole? So the third rule, as I suggested, is that we should be really worried about allowing people to raise religious liberty claims challenging a government policy because if they succeed on those religious liberty claims, then other people might also raise other religious liberty challenges to other government laws and policies. Because too much religious liberty is bad, right, Leah? Okay. Again, I don't want to suggest that's animus, but I'm a little concerned here. Um, it was just super odd because from the argument, this seemed to be a concern of none

other than religious liberty fanboy Samuel Alito. So let's play that clip here. Over the last couple of years, we have had a whole series of stay applications that present issues that are related to the one that is presented here. And each one has been different. Like virtually every application for a stay of execution they come to us at the last minute, the day before, sometimes the day of, and what you have said so far suggests to me that we can look forward to an unending stream of variations. So you would be satisfied, you have told us you would be satisfied if Pastor Moore touches Mr. Ramirez's foot. But what's going to happen

when the next prisoner says that I have a religious belief that he should touch my knee, he should hold my hand, he should put his hand over my heart. He should be able to put his hand on my head. We're going to have to go through the whole human anatomy with a series of cases and you haven't said anything about what you want exactly with respect to audible prayer. What type of prayer? When? How loud? What exactly do you want to start out with? Can you say anything to us to relieve us of the fear that we are going to get an unending stream of variations about both of these things, about touching different parts of the body, about the type of prayer, the singing, chanting, number of people in the room.

Are we just, is this just what's going to happen? The chief also had questions about other challenges down the line, wanting to know, well, what about an inmate who wants to be touched on the head or the chest specifically? This is one example. There were many in the oral argument, but just like the kind of ghoulishness, you said you ghouls earlier, Leah, that made me think of it. I'm just like, you know, kind of like the detached and sort of legalistic discussion of the places on the body spiritual advisors' hands can be laid, in addition to the bizarre contempt for religion on, at least when we're talking about individuals condemned by the state to die, in addition to that through line, just like the tone with which

some of this was discussed, I just like, I had made my skin crawl. What was also, I guess, kind of gross and skin crawly was the fact that this whole line of inquiry about the slippery slope would have appeared to have been answered by an earlier court, namely the Hobby Lobby Court, which addressed this very question about the prospect of a proliferation of these kinds of claims. So in Hobby Lobby, the court, name check, Justice Alito, who wrote the opinion for the court, said HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs such as vaccinations and blood transfusions. But HHS has made no effort to substantiate this prediction, nor has HHS provided evidence that any significant number of employees sought exemption on religious grounds from any of the ACA's coverage requirements other than the contraceptive mandate. What slippery slope! He then went on to write,

In any event, our decision in these cases is concerned solely with the contraceptive mandate. Of course it is. Our decision should not be understood to hold that any insurance coverage mandate must necessarily fall if it conflicts with an employer's religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests. For example, the need to combat the spread of infectious diseases. You can't make this up. I know.

You can't make it up. It's truly unreal. It's like, do they even care that they wrote this? A self-owned. Yes. Self-owned seven years later. And the shamelessness, the utter shamelessness of it all. Because, of course, Justice Alito was one of the justices who, together with Justice Gorsuch and Justice Thomas, would have said, let's enjoin Maine's requirement that public health employees get vaccinated. And they just

don't care. We need to change the shirt. Instead of hyperbolic lady parts, it should be hypocritical justice parts. Definitely. Yeah. And I mean, I feel like we are... Self-owned Sam. Self-owned Sam is good. That's really good. I'm not allowed to come up with other nicknames for Justice Alito, apparently. I've been warned, but I like that one too much. Self-owned Sam. And I mean, at this point, I feel like we are a little bit belaboring the point, like our receipt couple on it's over. No, I have receipts and I am going to show them. But they keep coming. There are just so many of them. So maybe like one more beat or two. I think we need to have Sam Alito ask a question of Sam Alito. Okay,

right. So we're going to go back to 2016 in Zubik versus Burwell. And 2016 Sam Alito has a question for 2021 Sam Alito. Well, that's one way of characterizing what's involved here. But you could also, it can also be said that, and it is true that this is a case in which a great array of religious groups, it's not just Catholics and Baptists and evangelicals, but Orthodox Jews, Muslim groups, the Church of Jesus Christ of the Latter-day Saints, an Indian tribe, the Church of Lukumi Babalu. I have said that this presents an unprecedented threat to religious liberty in this country. What would you say to that? Sick burn, Sam. So those are apparently the rules of ecclesiastical whack-a-mole. But something else I learned during this argument, which, you know, again, was in some ways the

most shocking to me, is that the states and the federal courts have an interest in ensuring that nothing goes wrong with executions. So Justice Kavanaugh was particularly fixated on this idea. So let's play some clips from him here. So let me just focus on the compelling interest because I think the state's compelling interest here is challenging for us to analyze because I think it is in reducing risk, risk of something going wrong in the execution chamber. And I think the state is saying, we want the risk to be zero of a problem. So we want the risk to be zero. Now that it looks like, okay, well, there has to be someone allowed in the execution room, a religious minister. We want the risk to be as close to zero as

possible of something going wrong. Why isn't that a compelling interest when the state says we want the risk to be as close to zero as possible and if we allow touching and the like, the risk increases? Judge Higginbotham said in his concurring opinion, while lethal injection may seem straightforward, the actual administration of the judge and pronouncement of death is both delicate and fraught with difficulties, as evidenced by the responses of regulatory bodies

and the experience of this court with mishaps in execution by lethal injection. In short, the complexities of attending the administration of a judge and the execution procedure and complexities intending the administration of Judge and the execution procedure and its failures expose the risks of non-medical hands on the body of a person undergoing the procedure. Why do you think Judge Higginbotham's wrong? Texas Solicitor General Judd, with two Ds, Stone, seemed to agree that states do have an interest ensuring that nothing goes wrong with executions. I think Justice Kavanaugh accurately or almost accurately summarizes

that we're attempting to minimize risk almost all the way to zero as much as we reasonably can. And then Kavanaugh says this. You have to think about the risk together with the harm, correct? That's exactly right. So the risk is low, but the potential harm, as you used the word, and I think Mr. Fagan agreed with this, catastrophic or some adjective similar to that. So those two things need to be thought about together. So where do we start with this? quote all of their questions in future writings about the death penalty, Justices Sotomayor and Kagan, when the court bends over backwards to allow a rushed execution without a full airing of constitutional claims. Because this, that is, their questions are exactly what is wrong with the Supreme Court's recent death penalty jurisprudence. They don't actually investigate the claims,

even though the claims raise questions about whether there is a real risk that something will go wrong with the execution and the risks of harm to them are catastrophic, astronomical. That is what is so ghastly and what was so ghastly about their actions in the Grant and Ray cases. They vacated stays, not allowing claims to be fully aired, even though the risks of harm to John Grant and Dominique Gray were about how they were going to die, whether they were going to be tortured to death, whether they were going to be killed without their spiritual advisor present. There are also a few other notes on this oral argument that I wanted to highlight, in particular about this case. There was an argument here about timeliness, which we flagged

in the preview, so I want to just reiterate that. Specifically, the argument was whether Mr. Ramirez had asked for his spiritual advisor to be able to audibly or vocally pray and physically touch him early enough so that he's not barred from raising those claims now. So Lisa, just briefly, can you tell us a little bit about the exhaustion rules on this sort of claim? I know we had Justice Thomas speaking earlier about how this was just a way to delay the execution. But there are actual procedures in place about whether or not these claims can be brought and how they're exhausted. Can you explain them for us? Sure. So under the Prison Litigation Reform Act, prisons are allowed to set up grievance procedures, and there's a requirement that you exhaust the available procedures to air your grievances, and you can't go and litigate in court without

that. So at TDCJ, the Texas Department of Criminal Justice, they have a step one and a step two grievance procedure, and it requires someone to, within 15 days of learning of an incident, you file a step one grievance. That gets processed. The state has 40 days to process that. You file a step one grievance. That gets processed. The state has 40 days to process that. You file a step two grievance. They have 40 days to process that. And then you are able to sue and you won't have violated the PLRA. But the PLRA is very clear that

the grievance procedure has to be available, meaning that it has to be capable of giving you relief. And something that we saw in this instance is that TDCJ waited extremely long times as the execution date got closer to respond to Mr. Ramirez. And not only did it wait extremely long times, but it also withheld information. So when the policy was changed in April 21st, 2021, to allow outside advisors to be present, there's nothing in there that says anything about inability to touch or prayer needing to be silent. So either TDCJ knew those were requirements at the time and they hid them or they thought of them as it went along. But either way, Mr. Ramirez certainly had no notice of them. And as he got it, as we've said before, he continued to exhaust.

So at some point, you know, you run out of time no matter how early you start. And he started early. But when you are, you know, let's say roughly 90 days out from your execution, when you first start to learn about different restrictions that are not in the policy, and then the state has 40 days to respond to one, 40 days for another. That's 80 out of your 90 days before you even get your paper back and forth. That's not a system that's available. And once it's not available, then the exhaustion requirement doesn't even apply. So it's not like there's an equitable exception or something

excuse needed here. He doesn't need an excuse. He fully complied with the PLRA. I mean, he filed in less than a year, four different grievances, a step one, step two, a step one, a step two. So he did everything he could. And the state, you know, whether it was intentional, unintentional, they just couldn't get it done. It really doesn't matter. Because what does matter is that it wasn't a process that was capable of ensuring that his grievances got aired. The responses that he was given when he asked for things were perfunctory and didn't highlight any of the problems. So, you know, we feel like he did everything he could and the delay was really on the states. And I think Justice Sotomayor at one point made a great observation when she said that it was in the state's control

in terms of the changes that were made and revealing them. And if they don't want things to go to the last minute, maybe they shouldn't keep changing the rules up until after even litigation has commenced. There were things that were revealed a little more than a week after the lawsuit was filed. I was just about to say you're giving me Justice Sotomayor vibes this time when you're going through all of those mechanics, because this is the point that she made, I think, quite effectively with Texas Solicitor General Judd 2D's stone. So all I'm suggesting is lack of clarity exists on both sides. But you can fix yours by filing a grievance less than a month, weeks after you announced your policy on May 4th.

You returned his grievance saying your spiritual advisor can come. Weeks later, Petitioner's counsel emails you and asks you if touching will be allowed. June 11th, three days later, petitioner files his grievance and says, allow more to touch and pray over me. You deny that almost a month later, July 2nd, and on July 8th, he files a grievance, but you don't respond to that over a month later. What were you doing six weeks later? Your Honor, if I recall correctly, we responded in 36 days. It's TDCJ's manual state that these grievances can take up to 40 days to respond. We try to be faster. TDCJ receives quite a few. Why were you so slow here? The execution is going to be in September. If you don't want there to be delay, what took you so long? Well, Your Honor, TDCJ still responded within

the amount of time that the manual says. Yeah, but at some point that becomes ineffective as a remedy if you're going to butt up against the execution date purposely. So there are some other themes that we wanted to highlight from this oral argument. One that I think is really important is that Justice Alito still has Fulton living rent-free in his head. And he's still really, really mad about how Fulton turned out and the fact that the court did not take the most maximalist approach by overruling Smith versus Employment Division. So here's a little clip of that. Yeah, Mr. Fagan, I do have a number of questions. Ria Lupa, like RFRA, like the pre-Smith free exercise jurisprudence of this court, requires an individualized determination.

That's been the law for a long time. RFRA has been on the books for a long time. It's a completely workable standard. It's regrettable it wasn't extended to the free exercise clause, but it is individualized. questioning the sincerity of someone's religious beliefs, suggesting he can't be bothered to deal with future religious liberty claims if they rule for this person. And apparently both of these things can occupy his mind at the same time. And that there was just no cognitive dissonance for him at all was quite revealing for me. Can it be a self-own if you don't know that you've owned yourself? That really is the question. If Sam self-owns himself, but it doesn't make a sound. He still self-owns.

I think so. I think so. Yeah. No, we will make that clear on this podcast. That is our mission. We'll see what has happened. Exactly. We'll see you, Sam. Justice Kavanaugh, interestingly, still also hung up on Fulton, although I wonder, like feeling vindicated maybe is what he was sort of trying to do.

Or defensive. Seems like he's trying to explain himself. Kind of. But then he's like, see, it's really, you know, maybe if we did adopt strict scrutiny in the First Amendment and for all purposes, then there would be a lot of problems. He basically said, look, Justice Sotomayor is quite right in saying that Congress put this standard in place, the strict scrutiny standard. I think the difficulty of applying it's one of the reasons some of us in Fulton had concerns about what might replace Smith. And this case is a good illustration, I think, of the problems that can arise trying to apply a strict scrutiny standard. So I think he's simultaneously feeling a little defensive and a little like vindicated in not having, you know, gotten on the fast train with Justice Alito in that case. So maybe because we obviously do have other things to cover. Lisa, are there any

final thoughts about Ramirez that you can share with us before we move on? Yeah, I mean, I think that we remain hopeful in this case. And I think that the state didn't do itself any favors at oral argument in some of the ways that Judge Stone teed up the issues, especially towards the end. And so, you know, we're looking forward to a remand to the district court where there can be a both sides can develop an evidentiary record. And we think that will more than bear out Mr. Ramirez's sincere religious beliefs. He's really been an active member of the death row community. It's a strange thing to say, but, you know, in terms of religious practice. And so we're looking forward, we're looking forward

and hoping that the justices find their way towards that result. And the one thing I really have to say before we jump away from Mr. Ramirez is that we had an incredible, incredible group of students in the Supreme Court Clinic here at UT Law, both in terms of our students who had just started the semester for about a week and a half before we jumped into this case after the grant, and we had four returning advanced clinic students who had been students last year. And when we were trying to decide if we could make this happen, because it was such an expedited briefing schedule, we said to them, if you want to have a chance to work on a merits case, we got it. But basically, this is your life for the next three weeks. And out of the blue, right?

And you know, they're looking for jobs and their fellowships, and they have schoolwork, and they all jumped in, and we couldn't have done it without them. And they've been incredible. And I couldn't be more proud and just grateful to be able to collaborate them. So thank you so much to all the students who made this possible. I'm so glad we can help amplify their work on the podcast. That is great. Hook them horn. The jumping this case from the shadow docket to the merits docket is the reason, as Lisa just described, that her students had to just spring into action like this. And I think it's a testament to the ability of, I mean, because of, you know, clinics like yours and students like yours, but also like it is possible for the court to get excellent briefing and amicus

briefs, et cetera, if they're going to move cases. If the alternative is just to dispose of these cases without full plenary consideration, like they don't need to be deterred by fast timelines from doing that in a case like this. It is possible for them to get what they need. Do you think strict scrutiny of the podcast is going to show up in a FedSoc speech when Justice Alito starts reiterating the litany of people who have wronged him? Is that what you would like? We're not visible to him, Melissa. We are women, remember? There is that. There is that. I think we're very even-handed with him. I mean, we pay him a number of compliments. A number. The dewy, moist, dewy skin. I mean. Which is now stuck in my head and I have to, yeah.

I mean, S-A doesn't just stand for salicylic acid. It stands for Samuel Alito. And they're both great for your skin. Moving on. Thank you so much, Lisa. That was really helpful. Congrats to you and your students on a masterful job under really difficult time pressure. It's really remarkable work.

Well, thank you so much. Hook them horns again. Okay. Let's talk a little bit about United States versus Vallejo Madero, which is another case that we had earlier previewed. Kate did a deep dive preview with Juan Perla, a Berkeley Law alumnus and my former student, as well as Neil Ware. And you all anticipated a lot of the lines of argument that we heard at Oral Arguments last week. So we heard about whether Congress can deny supplemental Social Security benefits to United States citizens simply because they reside in Puerto Rico. That was the main question in the case. And the argument is that such a denial is a denial of equal

protection in violation of the Fifth Amendment. So Kate, do you want to help us understand oral arguments here? Sure. So yeah, let's start with maybe the question, which is something that I talked to Juan Anil about, which is how the court would approach the question of the Insular Cases. So these are a group of cases collectively known as the Insular Cases that famously and infamously held that certain protections of the Constitution might not apply to territories including Puerto Rico because Puerto Rico is a territory. And the reasoning and the language of the cases are just unspeakably nativist and xenophobic and racist. And yet they remain good law. They have never been overturned. And so there was a question that, you know, there was an explicit request from Mr. Valle Madero, who I keep wanting to call the plaintiff,

but in fact, he was the defendant below because the federal government sued him for nearly $30,000 that the federal government incorrectly continued to give him pursuant to this benefit program that he, unbeknownst to him, had lost his eligibility to continue participating in by virtue simply of moving from New York to Puerto Rico. But I digress. So as to the Insular cases, perhaps surprising no one, right, the Chief Justice seemed to want to establish very early on that this case wasn't about racism or racial animus. So maybe let's play the Chief Justice raising the question of the Insular cases here. Do the Insular cases have anything to do with this litigation? Also, you know, surprising no one, Justice Gorsuch was eager to have a crack at potentially overruling a case or previous cases.

Counsel, if that's true, why shouldn't we just admit that Insular cases were incorrectly decided? I mean, I think he wasn't just, you know, it wasn't just his kind of reflexive eagerness to kind of burn down precedent like wherever he finds it. I think he genuinely could be interested in revisiting. I mean, here, I think the incorrectness of the decisions, his own, I think, kind of moral vanity, and his eagerness to burn down precedents and destabilize stare decisis might align, actually. So I can very much see him, I don't know how many people he would find to go along with him, but I could very much see him writing something calling for the insular cases to be overruled here in this case, or at least in a proper future case in the near future. I also struggle a little to see how the insular cases aren't at all relevant

here, just based in part on the hypothetical that Justice Thomas began the oral argument with and that Justice Sotomayor picked up on and that the justices really seemed to focus on. And that hypothetical was whether it would be constitutional under the Equal Protection Clause for the government to say, you know, any state, like Vermont, has too many needy people. We're not going to give supplemental social security benefits to people in Vermont. And the lawyer for the government basically admitted that that would be a different question and a question about Puerto Rico's status vis-a-vis the federal government. And the idea that it's a different constitutional question, how you treat residents of a state versus residents of a territory, is, of course, a principle that the Insular Cases rested on. Yeah, definitely. I mean,

the federal government's answer to that is, well, the Insular Cases presents this big question about whether the Constitution applies at all to residents of territories. And here, the federal government does concede that the Equal Protection Clause or the Equal Protection Component of the Due Process Clause of the Fifth Amendment does apply to this program. And the eligibility of Puerto Rico residents for this program just says that rational basis is the right way to scrutinize the denial. But they're suggesting it applies in like a watered down way. Yeah, totally.

They're saying the Constitution applies and they say that insular cases is like an on-off switch. And because they do agree that this constitutional protection applies, this kind of question of screens of scrutiny and those are about how specifically to apply the Constitution but not whether it applies. And so that distinguishes – I don't find it persuasive, but that I think is the basic argument. lot of cases on related issues actually has in the pipeline a case squarely presenting the question of citizenship, like the eligibility for citizenship of individuals in American Samoa is in the case that's being litigated right now. So there are other, I think, on-deck opportunities for the court if it does dodge really grappling with the insular cases in this case to return to the question pretty soon. But it was worth noting that Justice Sotomayor, like Michael Jordan, seemed to take this personally. And not surprisingly, her family is from Puerto Rico. So I think she brings a level of investment to the case that might otherwise not be there. And she really brought some, you know, nobody puts Sonia in a corner energy to this. And I was kind of here for it. So this exchange that will follow reminded me of the

comments that she made at NYU that we also highlighted a couple of weeks ago in an earlier episode about how she responds to being interrupted. If you thought that that history prevented Congress from drawing any distinctions with respect to the territories, that would be a sea change in equal protection law. Thank you, counsel. Justice Thomas, Justice Alito, Justice Sotomayor. Just to finish that thought. No. But a distinction based on citizenship, period. Needy is needy, whether in Puerto Rico or in the mainland. So there was also this one kind of yikes moment in the argument for me, where the justices seem to forget the basic holding of kind of a fundamental case in federal courts. So let's play that clip here. Have we ever held that the Republican form of government provision is judicially enforceable? I believe so.

I think it's a – it's a – What case? I can't – I can't say. Wasn't there something in Rhode Island? There wasn't. I'm not sure. There wasn't. Yes. We'll go back and look.

Something happened in Rhode Island just as prior. And I agree, but I'm not sure what the result of that case was. We'll look. It's another small state. Luther versus Borden. So law students who are getting ready to take exams, don't worry. Sometimes Supreme Court justices can't remember case names or holdings. It was such a strange moment because it really, as it transpired in real time, it seemed like maybe the justices were kind of just going a little bit easy on the advocate who himself was sort of struggling to recall what exactly this Luther versus Borden case had said or, you know, the case, you know, even its existence.

He seemed to be struggling a little. And then the justices, I thought, maybe were just sort of not pressing him hard just, you know, because they chose not to do that. And then it turned out, no. No, they actually didn't know. They also couldn't remember what they had held about the guarantee clause, like an important constitutional provision. And I don't know. I sort of tried to ask. There aren't a lot of people in the courtroom, so I haven't run this down like journalistically, although I put the question to a couple of people. But I think

Roberts at one point then called for either the U.S. reports or something, a note from his law clerk confirming to him, in fact, according to how it held. Some enterprising law student, please do this during exams. Excuse me, I need the librarian. Librarian stat. I'm right now. And then he comes back later and says, ah, having refreshed my recollection, I now remember that we have found this provision non-justiciable. Which, honestly, like, I think you can push back on, like, how broadly to read that case anyway. Yes, of course. So it wasn't like that was necessarily a fatal line of questioning. But it was, I think you're reading it exactly the right spirit, Lee.

Which is, like, it should remind all of us that that like, it's fine to not remember a case name, like even if it's actually a pretty important one, and you're the chief justice of the Supreme Court. And not even the name, the holding. Any of it. The state, only Breyer even remembered the state out of which it arose. I think, again, that is a great opportunity for merchandise. Wasn't there something in Rhode Island? Like, that's a shirt. That's your shirt you take your exams in. So we have some news slash court culture. Let's do the cert grants. Like just like there are some pretty interesting cert grants. So Leah, you want to sort of tee up the ones that you found particularly interesting? Sure. So they granted cert in a Bivens case. A

Bivens case is when you sue federal officers for damages for violating your constitutional rights. The U.S. Court of Appeals for the Ninth Circuit recognized the Bivens claim for First Amendment retaliation. This is a cert petition that Lisa Blatt had filed. One of the questions she asked the court to grant cert on was whether to overrule Bivens. The court did not take that question. Instead, it appears poised to do what it has been doing for the last several decades, which is chipping away at Bivens and limiting it further and further without actually overruling it. Another set of cases that the court granted Sirdon involved the proper interpretation of the Federal Drug Prohibition Controlled Substances Act, and specifically whether there's a good faith defense for people who are prescribing opioids and narcotics.

The particular individuals whose cases are before the court, I believe, were engaged in like pill farms or giving pills for money. But there is a question about whether you can prosecute someone if they have a good faith belief that someone is in pain or needs the medication. In other notable court news, the Fifth Circuit stayed the Biden Department of Labor's rules regarding vaccination and testing in the workplace. Again, this was a set of rules that were going to be promulgated under the auspices of OSHA. The panel there noted that there were, quote unquote, grave statutory and constitutional issues with the mandate prompting their injunction. Notable that that is not actually the legal standard for enjoining a rule, but okay. It's also worth noting that the panel that enjoined the vaccination rules was also the

same panel that stayed the district court proceedings involving SBA, which allowed SBA to eventually go into effect. And that panel included Stuart Kyle Duncan, Edith Jones, and Kurt Englehart. One more thing to flag that's maybe coming down the pipeline is the litigation involving the January 6th Select Committee's request for documents from the Trump White House, you know, created on and around January 6th. The Biden administration has not raised an executive privilege objection. Trump filed suit asserting executive privilege as a former president. The district court, I think, quite correctly found that a former president cannot override the wishes of an incumbent president with respect to an assertion of executive privilege. And Trump immediately

appealed. And there is an administrative stay now in effect preventing NARA from – NARA is the government entity in possession of the requested records. And so those records are not going to be handed over in the very short term. But there's an argument on November 30th before the D.C. Circuit. And this strikes me as a case that the court could have, you know, at least on the shadow docket. Who knows? Maybe migrates to the merits docket quickly. But this is a case that we definitely need to keep our eye on in the next couple of weeks. And then maybe we wanted to take a moment to recognize a Supreme Court clerk slash advocate moment of the week, which is that Ted Cruz, former Rehnquist clerk, former Texas Solicitor General and advocate before the Supreme Court, spent the last however many days accusing Big Bird of being a propagandist. A vaccine propagandist, a pro-vaxxer. Right. I should specify the kind of propagandist. Okay vaccine propagandist, a pro-vaxxer. Right, so I should specify the kind of propagandist. Okay, and okay, Leah, you created

a beautiful segue here. This is all credit to Leah. It appears that birds were also on the brain at one first street this week, at least in the oral argument in Unicolors versus H&M. A case about the standards for deciding whether a misstatement in an application for registering a copyright work is sufficiently serious to require courts to refer the matter to the Register of Copyrights.

Let's see. Okay. You'll see. Don't argue. This is a good game. Maybe I shouldn't ask it. Suppose we looked around and a bird flew back there. And I say, my God, it's a scarlet tanager.

And you say, no, it isn't. It's a northern oriole. I have made a mistake. You are right. Okay? Now, there are two reasons I might have made a mistake. One, I saw a flash of yellow, but it wasn't yellow. It was red.

And you saw it. The second reason is we both saw exactly the same thing, but I don't understand the right use of the label. We made a mistake of whether it's a Tanninger or an Oriole. I made that mistake, not a mistake in what I saw. How would we resolve our differences? We would call in an ornithologist, I guess. Now, I raise that example because this seems exactly the same thing. It isn't a bird. This clip is literally the best, best advertisement for judicial diversity that I have ever seen. Like, amazing,

right? Do we just need- Oh, I actually think Justice Breyer might have one-upped it in the next clip that we're going to play of his. But first, before I note that next clip, the H&M unicolors argument was the first oral argument of Melissa Patterson, a new assistant to the Solicitor General. So we did want to recognize that. But the other argument and moments from an argument that we wanted to recognize were when Justice Breyer seems to be fantasizing about opening a kale shop. So here he is in Austin versus Reagan national advertising of Austin. All right, so I'll tell you why we let the home, my own kale shop. I sell fried kale. And right outside, I want a big picture of kale that lights up.

Okay. It's mine. This is my shop. I want to decorate it the way I want. Strong interest. I don't have the same interest in what the billboard 40 miles outside the town says about my kale shop. Okay. There's your difference.

And the grandfather is because we love grandfathers. Okay. There we are. And that's historic. And go back to the year two, you'll discover those kinds of distinctions. So they're distinctions. And therefore, I have to get to the content-based. And now I'm back at Justice Alito's question.

Content-based? Hey, the whole SEC is content-based. And what about the infinite number of FDA rules that say you better disclose how much sodium there is? That's not content, sodium? It isn't, it's salt. But salt, by the way, is a kind of content. And it's not good for you. I think, honestly, I think it's because Justice Thomas started the argument talking about barbecue and burgers, and Breyer just wanted the green vegetables to get their due in the argument. I think that's what he was responding to. talking about barbecue and burgers, and Breyer just wanted, like, the green vegetables to get their due in the argument. I think that's what he was responding to.

Justice Thomas seemed to know that we were going to be here in Austin because he shouted out Franklin Barbecue. So, yay. He's not just Dunkin' Donuts, but also Franklin Barbecue is high on his list, and it is actually delicious, so strong take. He was also losing it in the background as Justice Breyer was going over his kale shop fantasy. Since we shouted out our fanboys, we also wanted to shout out a fangirl because we

are an equal opportunity podcast. So Laura, who on Twitter goes by the handle Laura Off Rohan, is one of our original listeners and it is her birthday. So happy birthday, Laura, many happy returns to you as you start this next journey around the sun. And since we are in Texas, I would be remiss if I didn't shout out the wonderful work of the Texas Law Review on an article I'm publishing with them, including some of the students who I believe are in the clinic, Lisa, that you were talking about. So thank you to them, Julia DiFiore, Bonnie Devaney, and Thomas Forster, as well as all of the other wonderful editors. That's probably all we have time for. Thank you to Texas, specifically the University of Texas Law School chapter of the American Constitution Society,

especially Zoraima Pellis. Thank you to Professor Lisa Eskow. Thank you to Melody Rowell, our producer, who definitely has her work cut out for her this episode with so many clips. Thank you to Eddie Cooper. Thank you to our listeners. And you can sign up to support the show at glow.fm forward slash strict scrutiny.