Strict Scrutiny - Sipping My Tea

Episode Date: July 1, 2019

In the inaugural episode of Strict Scrutiny, Leah, Melissa, Jaime, and Kate recap two of this term's biggest opinions--partisan gerrymandering and the census. They also walk through a theme of this term (stare decisis) before talking about the podcast's role in Supreme Court legal culture. It's Strict Scrutiny's test pancake, so enjoy the show! 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 necks. This is Strict Scrutiny, our new podcast about the Supreme Court and the legal culture that surrounds it. A podcast so fierce, it's fatal in fact. We're your hosts. I'm Leah Littman. And I'm Melissa Murray. I'm Jamie Santos. And I'm Kate Shaw.

We have a big show in store for you today. It is our end of term recap. We are going to try to recap some of the biggest opinions from the term before discussing the court's themes of the last term and then ending with a quick segment about how this podcast fits into the legal culture surrounding the court. Obviously, this includes a 30-minute discussion of the court's Armed Career Criminal Act cases. Just kidding, or maybe not. Okay, so we thought we would start with Department of Commerce versus New York, the big census citizenship case. So that was probably the most anticipated case of the term. It came down on the last day of the term. So maybe I'll give a quick overview of the case,

and then there's a lot to talk about. So we'll all kind of jump in on it. So here's the background. So early in 2018, the Trump administration announces that it's going to add a citizenship question to the 2020 census. And a number of states and groups immediately bring a challenge under both the Administrative Procedure Act and the Constitution. So the administration tells a story about how they decided to add this question, tells a story both publicly and in testimony that Commerce Secretary Wilbur Ross gives to Congress. I mean, I should say the census is part of the Commerce Department. And so that's why the Commerce Secretary is at the heart of all of this. So he tells a story, which is that DOJ requested the addition of this question, basically better to aid it in enforcing the federal voting rights laws. And there is a DOJ letter basically to that effect. But documents and testimony that emerge in the litigation

quickly suggest that Commerce was hard at work on this question months before it got the request from DOJ, basically from the beginning of the administration, and that Commerce actually asked DOJ to ask them to add the citizenship question. And it's pretty clear that inside the Commerce Department and the Census Bureau in particular, the experts were pretty unified in their position that it was a very bad idea to add this question, that it would drive down response rates and not in an even way, right, in particular in communities with high immigrant populations, and that either way it would hurt the overall quality of the census data. The point of the census is to count the population.

This would hurt the results of that counting effort. So in this lawsuit in New York, the plaintiffs bring these arguments under the APA and under the Constitution. And after a lengthy trial, the New York District Court, in an opinion by Judge Jesse Fuhrman, rules for the plaintiffs on their statutory claims. So the Administrative Procedure Act is basically kind of the constitution of the administrative state. It is a big statute that basically sets forth the rules by which administrative agencies have to conduct their business. And the part of the APA that was sort of at the heart of this case is basically a requirement that agencies have – a prohibition, I guess, on agency action that is arbitrary or capricious or an abuse of discretion or contrary to law.

And what that means basically is that agencies have a lot of discretion to make policy judgments. But they have to make judgments that are reasoned, that are based on evidence, and they have to explain those decisions. And basically, the court here found that the administration had totally failed to do that, that there was a disconnect between the evidence that the Census Bureau considered and the decision that it made, and that the justification of kind of voting rights enforcement just didn't square with the record before the court. So the district court joins the administration from including the question. The Supreme Court takes the case directly. You know, we're all watching it. And, you know, oral arguments, I think people thought, suggest that the administration was

pretty likely to prevail here. And in an opinion, again, issued on the last day of the term, Chief Justice Roberts and the court's former liberal justices agree with the district court that the administration had violated the law, at least in the way it went about including this question. I think that's an important clarification in how the court concluded that the administration violated the law, because the court didn't say that administrations are prohibited from adding a citizenship question full stop. The court didn't even say that based on the record before the agency, the Commerce Department couldn't add a citizenship question. That is, the court didn't

conclude that even though the census experts found that a census or citizenship question would depress turnout, that the agency couldn't ultimately do so. Instead, what the court did is it concluded the administration had essentially lied about its explanation for adding the census. The administration said, we are doing this solely because the Department of Justice requested this question in order to better enforce the Voting Rights Act. The court said, we just don't believe that. And so hypothetically, a future administration or perhaps even this one could add a citizenship question to a future census. But the court said what you can't do

is lie about your reasons for doing so. So to me, that's the most important part of this opinion, because this has been widely praised all over the internet and in public commentary as a huge victory for civil rights groups. And I actually think it's much more muted and cabin than that. This is not an overwhelming victory. This just directs the administration to go back and pick a less pretextual rationale for a citizenship-based census question, which they will surely do. And they will find a different way to phrase this to get to their desired outcomes. And the other thing I want to make clear is that regardless of whether or not a citizenship-based question is on the census, the damage has already been done. Like there is always going to be underrepresentation on the census among certain groups because of distrust of government.

And this litigation only exacerbated that distrust. So I don't think we're going to see an accurate count. We'll probably see an even greater undercounting than we had before. And that was surely, at least in the short term, part of the aim. I think that that's right. And I think it's important to flesh that out because part of the undercount of the census arises from the fact that, well, if you ask a citizenship question, then there's going to be a concern among immigrant communities or households with non-citizens that the information could be used against them or their loved ones in immigration proceedings. But now, as the Trump administration is sort of ramping up its enforcement of the harsher aspects

of immigration law, well, that is also going to depress some turnout in families responding to census takers coming to their homes or even to the census in general, because they are also concerned about that information being used against their loved ones. And, you know, you raise the possibility of the administration attempting to add a citizenship question back onto the census. I think there's some uncertainty about their ability to do so this time around, only because... But not next time. Yes, exactly. I mean, so 2030, I think it's wide open. I mean, 10 years later, but this did not foreclose that possibility of the future question like this.

Yes, that's exactly right. I think it's uncertain whether they could do so in the 2020 census, only because the administration has represented that they have to print the forms by July 1st. Now, the plaintiffs in this case have represented that actually the hard deadline is October. So it's hypothetically possible for the administration to attempt to come up with a new proposal to add the citizenship question within the next few weeks

and then get the forms printed in October. But it's just not clear that that's going to happen or that they have the resources to do that in a legally valid way. Right. They need to be able to run a new process that would withstand judicial scrutiny. And surely whatever they produced would be challenged swiftly. And I'm just not sure. And you also have this separate constitutional litigation ongoing. There's a separate challenge to the addition of the question unrelated to the case that was pending before the court.

So I think, you know, a lot would have to happen inside the Census Bureau, even to generate a new proposal to include the question. Feels to me unlikely that they'd be able to do that in a way that would withstand scrutiny in time this round, though I certainly take the point it could be possible in the future. It's also worth noting there is this other corollary case going on in the District of Maryland, and it concerns the sort of smoking gun in the census litigation that was not part of the record before the court, but is surely part of the record before the District of Maryland. And this is, of course, the recovery of those cash documents from the Hofeller hard drive, which suggests that the census question was part of a longer strategy to use citizenship information to draw districts, congressional districts, state legislative districts. And so a shift from a population-based

model, which is what we have now, which counts everybody, to a model that only counts citizens, and in doing so, would shift political power from urban enclaves, which are traditionally Democratic, to rural enclaves, which generally vote Republican. So there's that going on as well. It was a big part of the Maryland case, not part of the case from New York, but again, very publicly discussed. Yes. And so Thomas Hofeller is a Republican redistricting specialist who was actually hired to consult in a number of the cases that eventually made their way to the Supreme Court this term. One of them is apparently the census case. And I think that that point you've just raised, Melissa, about the Hofeller files not actually

being part of the record in this case is important because part of me wonders if the result in this case actually would have been the same if not for the completely coincidental discovery of the Hofeller files. Those files were only recovered because he passed away and his hard drive made their way to his estranged daughter. And if we hadn't uncovered all of this additional evidence that would have made the court look so completely even more ridiculous for upholding what the agency had done, I wonder if the Chief Justice would have kind of held his nose and given the administration a pass on this one. I hope not. But, you know, it's just one of those questions that is going to remain unanswered.

One thing that struck me about this opinion is that the chief's opinion was about the most sanitized possible version of the facts that I lot of damning evidence about how the secretary reached his decision, about all of the considerations, about the kind of history. I suspect that if it were a Justice Kagan or Justice Breyer, Justice Sotomayor decision, it would have had a lot more factual background that would have demonstrated why this decision was so outrageous. And the point that that struck me is he said something, he said, you know, that the APA requires a reasoned decision, and what was provided here was more of a distraction. And the use of the word distraction was so bizarre to me. Because I mean, this was a question about whether this is pretextual. And it's just kind of this very sanitized, you know, characterization of what the secretary did. And it is no surprise that the chief

assigned this to himself so that he would be able to kind of write a less inflammatory opinion, but it was striking to me. Yeah, the chief justice was really unhappy that he had to consider all of this evidence about the real reasons for the addition of the citizenship question. But it was almost like, well, pesky evidence. Exactly. But since I'm forced to look at it, I guess I have to conclude that the administration's reasons were pretextual, since these idiots were taking notes on a fucking civil conspiracy. But anyways, that's a side note. And yet, the four other members of the conservative wing of the court had no problem with this. And I will say this case should have been struck down unanimously as a violation of the Administrative Procedure Act, like full stop. And the fact that we had to get into all of this I think is just kind of a travesty. But the fact that four members of the court thought, you know, there was nothing to see here, despite all of this pesky evidence and these rascally kids, that's kind of shocking

to me. It was shocking. And in particular, there was a passage in the dissent that Justice Thomas wrote that Justice Gorsuch and Justice Kavanaugh actually joined that said, I don't deny that a judge who's predisposed to distrust the secretary of the administration could arrange the facts in a way that would create a conspiracy web. And that accusation that the trial judge in this case, Judge Furman, was basically acting out of impermissible motives or some bias against the administration, I thought was completely unwarranted and really shocking for the justices to say. One question I had is that, you know, Kate, you mentioned that

this should have been struck down on APA grounds, but it wasn't. I mean, there was this discussion that the chief had in his opinion about how this wasn't, it didn't fail arbitrary and capricious review. And instead it was struck down for being pretextual. And I think there was one in the dissent, there was something about how, wait, what is this pretext part of the APA that I've never heard of? But since it was struck down as being pretextual, what's the point of the remand? I mean, there's really no direction on how the taint of the pretext could be purged. So what's the point of the remand? Well, but also in terms of what the decision does, I think you're right. There are these two separate sections. One, which seems with the support of the conservative justices and the chief to say the evidence that was there could have supported the decision. But then there's this other part that really is about pretext that's joined by the liberals that says, but the reasoning sort of didn't stand. I think that's still an APA holding. It's just, you know, I think it's a confusing task to try to reconcile those two portions of the opinion. But I do think

that this is that the suggestion is that this fails APA review, because, you know, the arbitrary and capricious standard has a couple of different components. The decision needs to be based on evidence, and it needs to be, you know, it needs to be reasonable, so substantively reasonable, and it needs to be reasoned, right? So it needs to be explained. And I think what the chief is saying is that actually this could have been substantively reasonable, but the reasoning is where the administration failed, right? It did not, it, you know, and it's sort of how those two things can both be true is a little bit hard to sort of get your head around. But it does seem to be, so that I think is why commentators thought, well, this is the invention of this new sort of pretext standard. But I think it's just a different articulation of what is already in administrative

law doctrine. But in terms of what the point of the remand is, yeah, just a new explanation. I don't think that can be right, because a new post hoc justification laid atop the same decision making record under sort of basic APA principles can't fly. So I think they would have to try to run a new, very accelerated decisional process and both consider the same evidence or new evidence and come to, if they want to, the same result and provide a different set of justifications. But I think because they'd have to do all that, I just don't think that the clock sort of will allow it. Well, should we also note that there are a bunch of people here who are really interested in deferring

to agencies, but only here, only on this question. I'll just put that out there. I think Melissa is alluding to the passage in the dissent that stated that Congress vested the secretary with virtually unlimited discretion. Congress's ability to defer to agencies is a topic we will get to later in the episode, but it's worth noting here that the proponents of that deference were, let's name them, Justice Gorsuch, Justice Thomas, Justice Alito, and Justice Kavanaugh. And I am actually sipping tea right now. Actually sipping tea. So I think that that probably wraps up our discussion of the census, just because we have a lot of big cases to try and get to. But we also wanted to briefly discuss the second big case that the court announced on its final day of the term.

And that was the partisan gerrymandering case, Ruscio versus Common Cause. It's helpful to explain just briefly what a gerrymander is, or a partisan gerrymander, is where a legislature tries to draw districts in order to disadvantage the opposing political party, in order to make it harder for them to win political power and political control, even if they win popular elections. I think the facts of these cases, as Justice Kagan recited them, make clear what partisan gerrymanders are and kind of what they do. So these cases, there were actually two of them, arose out of North Carolina, where the gerrymander was against Democrats, and Maryland, where the gerrymander was against Republicans. As Justice Kagan recounted the facts in her dissent, what happened in North Carolina is

that North Carolina had a Republican majority in its state legislature, and they decided to do some redistricting. And the main criteria that they adopted for their redistricting was, quote, partisan advantage. And what they wanted to do, they openly admitted, was to secure a system that would have Republicans maintain control of 10 seats and give Democrats just three, basically no matter what happened in the election. And they basically achieved that. In 2012, the Republicans won nine of the state's 13 seats, even though they received less than a majority of the vote.

In 2014, they got 10 of the seats, this time based on 55% of the vote. And so they managed to lock in a system whereby it didn't really matter what the vote count was, they still won the same number of seats. Something similar happened in Maryland. And it's not even clear these are the worst partisan gerrymanders. I think the example of Wisconsin is really illuminating here. So in 2016, Republicans won by 150,000 or more votes in Wisconsin, and that gave them a 29 seat majority. In 2018, however, they lost by over 200,000 votes, and they still managed to retain a majority, this time of 27 seats. So how legislatures draw districts can

really affect the ability to use elections to maintain political control. And the issue in this case was whether federal courts can do anything about these partisan gerrymanders. And the technical question was whether partisan gerrymanders. And the technical question was whether partisan gerrymanders are so-called political questions. A political question is an issue where even though there's a constitutional violation, it's left up to the political branches to remedy. The federal courts can't do anything about it. And in Ruscio, by a 5-4 vote, the chief justice writing with the four conservatives held that partisan gerrymandering is one that has vexed the court for a really long time. The court resolved the issue of racial gerrymandering, which is drawing districts along lines that disadvantage

particular racial groups, but it's never been able to identify a working standard for determining when a partisan gerrymander has gone too far and is tipped into unconstitutionality. Last term in Gill v. Whitford, the court seemed to be casting about again for a workable standard. Ultimately, it could not find one, and it punted that case back to the lower courts on standing grounds. That was when Justice Kennedy was on the court, and Justice Kennedy did seem really amenable to the idea that there could be a workable standard that the court could adopt going forward. He just didn't know what it was. The departure of Justice Kennedy from the court, I think, really is a major part of this case and really shows how the personnel of the court can shape decisions. With him gone and replaced by a new justice, Justice Kavanaugh, suddenly it doesn't seem like there is someone who is pushing to find that workable standard. But instead, this becomes a question of non-justiciability or justiciability,

and the court ultimately determines that this is a non-justiciable political question. There is no workable standard that could be identified, and this is not something for federal courts to be involved in. One thing that struck me, though, about the entrance of Justice Kavanaugh in the court is that during the argument, at least in the Maryland case, he was very critical of Maryland, of the Maryland legislature for what it did. I mean, he was, you know, spouting out specific municipalities and areas and talking about, you know, the area beyond the bridge. And, and I mean, he knew exactly the areas where everyone was talking about. And so I think that there were some folks who thought he might be more sympathetic to the idea of a partisan gerrymander being extremely problematic at the least, if not unconstitutional. That just didn't turn out to be the case.

Yeah. And I think people also thought that just as a legacy matter. So the last really big partisan gerrymandering case in 2004, Vieth, was this kind of weird 4-1-4 case in which four justices said, yeah, these should be justiciable and four said definitely not. And then Justice Kennedy wrote an opinion that seemed to say, there might be a theory out there. We're not sure what it is. You know, keep litigating these cases, bring them to us, and maybe we'll be able to resolve what the standard should look like. And that maybe, you know, he retired from the court without ever seeing that project through. And so I think there was some thinking that, you know, his replacement and former law clerk, Justice Kavanaugh would be able to, you know, sort of finish that project and maybe identify some kind of First Amendment standard that would prohibit the most extreme versions of partisan gerrymanders. But so that

case was 2004. So we've had, you know, 15 years of this kind of cloud of uncertainty hanging over the practice of drawing district lines at the state level. And as Leah said, this case just slams the door shut in terms of federal judicial review of these kinds of gerrymanders. And even with this cloud of uncertainty, this idea that there might be some conduct that goes too far, legislatures have engaged in pretty aggressive gerrymanders, right? So I think now, without any fear that they're going to be restrained by the federal courts, you know, anything goes, really. So I think we could be looking at a future, you know, we'll talk about the mechanisms for potentially responding to gerrymanders that the chief identifies in a minute, but at least in terms of federal judicial review, you know, I think that it's going to be the absolute Wild West in terms of partisan gerrymanders in a way that we haven't even seen before.

I think that's an important point because Justice Kagan responded to the majority opinion. Justice Kagan wrote the dissent, and she said the majority is basically shrugging its hands and saying partisan gerrymanders are fine because we've had them for a long time and we've been okay. And one of her points was that, look, the court has never blessed partisan gerrymanders are fine because we've had them for a long time and we've been okay. And one of her points was that, look, the court has never blessed partisan gerrymanders, has never given legislatures a free pass and said, go ahead and do whatever you want. And once that happens, then there's reason to think that partisan gerrymanders will be worse, particularly when you add on advanced programming and technology that can help legislatures draw

more draconian and effective partisan gerrymanders that will even further reduce the democratic responsiveness of elections. And I think the one thing that Justice Kagan, that really bothered Justice Kagan and troubled me as well when I was reading the majority opinion is, you know, there are cases where there might be a difficult line to draw. Is this too far? Is this not too far? But does that mean that because there might be difficulty in line drawing in close cases that we shouldn't have a line at all? These cases are not close calls. And I don't think anyone, even in the majority, said that this is not troubling or that this wasn't just a blatant partisan gerrymander. But why should we just

completely abdicate our responsibility because some cases that aren't before us might be difficult? Well, that was also, I think that was Kagan's point. You know, we draw lines all the time on really close questions. And this is just another one of those. And to take ourselves out of this is an abdication of duty. And I think she also notes the circularity of the majority's logic. This is a problem created by political branches, and they have ultimately left it up to the political branches to resolve, which is a little bit like asking a burglar to recover the items she burgled and put them back. I mean, to make a burglar responsible for remedying the burglary. And I'm kind of with her on this. This decision doesn't make a lot of sense to me.

It's such an emotional dissent. I mean, when you think about this idea of demos prudence and using dissents to sort of publicly signal things, there's a lot of public signaling going on in this dissent from Justice Kagan, a lot of public signaling to state legislatures, to like, the ball is in your court and we need you to be better than you have been on this issue before and kicking it to the people. Like we need you to really get in there and demand more from these legislatures and more from us. I think that that's an important point is the tenor of Justice Kagan's opinion, and in particular, her pointing out that of all of the issues that the court would kind of stay its hand on and say we can't oversee it all, one that went to the representativeness and responsiveness of our elections

is maybe the worst one. Because in saying that this issue is a political question, you're saying, go ahead, deal with it in elections, the ballot box through the political system. But the constitutional issue in these cases makes it so elections are really hard to address the problem. If gerrymandering is a political question that should be resolved by elections, well, the elections themselves are undermined by gerrymandering. And I don't think it's much of a solution to say, well, just go win an election by 70 plus percent, which might be needed in order for the disadvantaged political party to actually retain control. In Justice Kagan's closing, and I think

she said this at the opinion announcement as well, she said, with respect, but deep sadness, I dissent. And she just repeatedly emphasized how partisan gerrymandering is hostile to our very system of constitutional democracy. It debases and dishonors our democracy. It encourages a politics of polarization, and it may irreparably damage our system of government. Her dissent is incredibly powerful, and I think it's really one for the ages. Yeah, no, that's right. I mean, and she makes the deep point that whatever sort of views we might hold about the rolehappiness a lot of people feel with the results of partisan gerrymandering. He says, look, you know, it leads to results that reasonably seem unjust. He says, but, you know, just because courts can't solve problems doesn't mean there aren't other mechanisms that people might utilize.

And so he points to state law claims that can be brought, state constitutional amendments, the creation of independent redistricting commissions. But for exactly the points that we've been discussing, most of those require this sort of mechanisms of democracy that Justice Kagan, I think, demonstrates, if not broke, you know, sort of permanently broken through gerrymandering, certainly skewed and distorted through gerrymandering. And so that I think that it's, it feels, you know, somewhat potentially disingenuous. And then the other thing is, you know, so independent redistricting commissions, I think, are a great potential answer. But the court has come, you know, the court in a 5-4 decision in which the chief justice wrote the dissent only a few years ago, came very close to holding that independent redistricting commissions themselves run constitutional. And I hope that's not something that would be revisited with a changed composition on the court. But Justice Kennedy was in the five justice majority in that case. So, you know, it's not inconceivable the court could revisit this

question and find that that other mechanism the court points to, in fact, isn't available either. Don't worry, Kate. Justice Gorsuch and Justice Kavanaugh have a deep respect for precedent. They would never overrule anything. So one mechanism that you mentioned briefly and that the chief talked about is something that, Leah, your judge would really love, talking about state constitutions. And my question is, you know, why isn't that the answer? You know, there are state constitutions that can be interpreted differently than the federal constitution? And state court, why aren't state courts a viable mechanism to address some of these concerns? I suspect one answer is a lot of state courts are subject to election. So judges are popularly elected or subject to retention elections. But why isn't that a reasonable answer?

Part of it is what you suggested, that the defects in the political process might undermine state courts' ability to actually remedy these violations. For example, if a gerrymandered election skews the results either in the winner of the political process who appoints or retains the justices on the Supreme Court or in electing the justices themselves. But what Justice Kagan says about this potential solution is that it undermines the very premise of the majority opinion, which is that there is no workable standard and that it is beyond the capacity of judges to actually develop a standard to remedy these partisan gerrymanders. Because if state courts can do it using provisions of state law and develop tests to determine when partisan gerrymandering has gone too far,

well, then federal courts can do it as well. So reliance on state courts suggests that this is something that can be remedied through the courts. Yeah, the unworkability point struck me very strange, because usually unworkability is a reason for overruling prior precedent. Usually you actually have to try to make it work before determining that it is unworkable. So I thought that was quite strange. One other question I had, and this is maybe a kind of depressing question, is does this decision actually make that much of a difference? And I guess here's where I'm going with this. Justice Kagan and many of the courts that have looked at this would have applied a three-part test.

Look at what's the purpose, what's the effect, and then is there a causation between the purpose and effect on the redistricting? And so the only reason why it's so easy to prove a partisan purpose is that the legislatures are waving their hands and saying, hey, we're doing this to do partisan gerrymandering. And they're doing this because they want to show they're not racially gerrymandering, but they're saying, we're doing this because we want more Republican seats. We want more Democratic seats. If Justice Kagan's test had applied, wouldn't all these state legislatures just kind of hide what they were doing in a more effective way? Does this actually make a difference? I think that would just depend on how courts actually apply the

purpose part of the test. It's certainly true that in claims like racial discrimination, for example, the modern court has been deeply hesitant to conclude that government decision makers are discriminating on the basis of race, absent kind of this smoking gun evidence where they concede that they are discriminating on the basis of race. But a sensibly applied purpose test could certainly come to the conclusion that legislatures are acting for partisan purposes or acting to discriminate on the basis of race, even absent that smoking gun direct evidence. And, you know, you can look at the effects of a policy.

You can look at the studies the legislature did in advance. And there are a myriad kind of circumstantial evidence that you can infer purposeful discrimination from. I want to just echo one thing that Leah said just about the Kagan dissent, which is that everyone should read it, right? It has this, it is this, you know, it's both analytically rigorous and sort of, it has this kind of, sort of of there's this existential kind of terror and, you know, sadness that kind of emerges at the end. It's like it's not a tone that you really or that I feel like I've really heard her strike before. And at the opinion announcement, I really wish that the court made the audio of the opinion announcements available faster than

it does. It's not typically available until the end of the summer, like September or October. But at the end, when she does say, you know, she says, with respect, but deep sadness, her voice sort of starts to crack. And she says, Justice Ginsburg, Justice Breyer, Justice Sotomayor, and I, she names her colleagues. And it was just like a really wrenching moment just in the press room, and I think probably in the courtroom as well. And it just felt like this kind of opinion that in the same way that Justice Ginsburg's dissent in Shelby County, another opinion in an important law of democracy case authored by the chief justice, you know, sort of famously inspired the creation of the notorious RBG Tumblr and then launched a thousand memes and all of that. It almost feels like this is an opinion that I don't know if it's going to launch a thousand memes, but that should sort of occupy the same kind of public space as that dissent in Shelby County did. It also reminds me a little of Justice Ginsburg's dissent from Goodyear versus Ledbetter,

where she said, the ball is in your court, Congress, to do something. And of course, H.R. 1 has passed the House. And among the many provisions of H.R. 1 is one that would preclude partisan gerrymandering as a matter of federal law. The difference, of course, is in this political climate, H.R. 1 has zero possibility of being passed by both houses of Congress. And so it is a bit like screaming into the wind. But I think this is an opinion that's not necessarily for Congress, but maybe for all of us. Justice Kagan actually noted that because the majority opinion says, well, look, there are a lot of bills to address partisan gerrymandering.

And she said, they are just bills. They're not the law. It's actually snarkier than that. It's a little snarky. Like, they are pending and they will be reintroduced until the end of time. It's kind of snarky. I'm here for her shade. I liked it.

Kagan's shade is the best shade. So on that note, maybe we can proceed to term themes. Kagan's shade is a term theme. That actually might come up a few times. So there was a lot going on this term, but one thing we wanted to focus on was stare decisis. And in particular... It's for suckers. Stare decisis is for schmucks.

That is the term theme of October term 2018. In several cases, the court was asked to overturn precedent. And when it was asked to do so, it often did. And some of the justices offered their own theories and modified theories of stare decisis. So we thought what we would do is just briefly walk through some of the opinions in which the court was asked to overturn precedent before unpacking what stare decisis is

and noting some shifts in the court's approach and some justices' approach to stare decisis over the course of the term. So just going to rattle them off so you can get a sense for how often this issue appeared at the court. In Gamble v. United States, the court was asked to overturn the separate sovereign doctrine of double jeopardy. That doctrine allows the states to prosecute you after the federal government does and vice versa. In that case, court doctrine allows the states to prosecute you after the federal government does and vice versa. In that case, court said we're going to stick with separate sovereign doctrine. Another case was Nick versus Township of Scott. This case was about takings

claims and specifically whether a would-be takings plaintiff, someone who wants to challenge the taking of private property, has to challenge that taking in a state inverse condemnation proceeding and seek compensation for the state before they go off to federal court. The way a takings works is the Constitution doesn't prohibit the government from taking private property. It just requires or prohibits them from taking private property without providing just compensation. So what the prior case had required was for litigants to seek compensation in the state court proceeding before going off to federal court.

In Nick, the Supreme Court overturns that prior case, and it was authored by the chief justice. That was just one of them. And then there was Franchise Tax Board v. Hyatt. This case involves state sovereign immunity. Specifically, can you sue a state in the court of another state? Here too, the justices elected to overturn their prior precedent in a 5-4 decision authored by Chief Justice Thomas with the four liberals. Oh God, Justice Thomas. Justice Thomas. No, don't promote him, please.

Wait, what did I say? Chief Justice Thomas. Honestly, the way the court is going with starry decisions, they might as well. In an opinion authored by Justice Thomas, the court overturned its prior precedent in Nevada v. Hall, so now you can't sue another state in another state's court. Then in Herrera v. Wyoming, the court addressed the survival of tribal hunting rights and whether the tribal hunting rights that are contained in a treaty with a Native American tribe survive a state's admission into the United States.

And there the court, quote, made clear what was evident in a prior opinion while another previous opinion was not expressly overruled, the court said, and it just retains no vitality. And so repudiated another prior opinion. So then we get to some of the bigger ones. Those are just kind of the some smaller ones where stare decisis came up. One of the bigger cases this term that frontally presented a stare decisis question was Gundy versus the United

States. So that case was a non-delegation challenge to a provision of the Sex Offender Registration and Notification Act. Non-delegation doctrine is a doctrine that requires Congress, when it provides rulemaking authority to a federal agency, to provide what is called an intelligible principle to guide the agency's authority in making those rules. And the court hasn't struck down any delegation on non-delegation grounds since 1935. And instead, it has signed off on a bunch of open-ended delegations, like telling the agency you can regulate in the public interest or in the public health. And so here, the question was whether the delegation to the attorney general contained an intelligible principle. And this case was heard

before Justice Kavanaugh was on the court, so it was just an eight-member court. And Justice Kagan had a plurality opinion that upheld the statute and said this contains an intelligible principle. And then you have separate writings from Justice Alito and a dissent by Justice Gorsuch. The separate writing by Justice Alito said, I'm open to reconsidering the intelligible principle doctrine, that is, whether it is constitutional for Congress to delegate rulemaking authority to agencies merely by providing them an intelligible principle, but I don't want to do so in this case.

And then the dissent by Justice Gorsuch, which was joined by the chief, and Justice Thomas, who are not the same person, said they would have reconsidered the intelligible principle doctrine today. Can I say a little something about those two separate writings? Because those were remarkable to me. So first, Alito's concurrence is three paragraphs. And he's just very clear. This isn't the case to do it. Maybe there's another case. And I think that is a remarkable effort at public signaling again. I mean, we've talked about public signaling before,

but this too, I think, is one of those moments where he's basically inviting someone out there, regulated industries, tee up another better case without sex offenders that I can deal with. And then in the Gorsuch dissent, that too was kind of remarkable where you have Justice Gorsuch going to incredible lengths to protect the rights of sex offenders. Sort of a weird optical moment, but these are strange times. And apparently, his interest in getting rid of the non-delegation doctrine or upholding the non-delegation doctrine and getting rid of the administrative state overrides his interest in getting rid of sex offenders. But these two writings, I thought, were among the most

remarkable just in terms of their effort to signal to outside groups that were open for business on this question. I actually thought that all three of the opinions in this case were kind of remarkable. I mean, so the case was about, it was someone who had not registered as a sex offender, which under the attorney general's, I think, regulations he was required to do. And it was – and so since he didn't do it, then he was arrested for not registering as a sex offender and then he was convicted of that crime. Is that right? I think it was a question because he had been charged and convicted as a sex offender before the law went into effect. So the real question was what would happen to those who were determined to be sex offenders before this law required notification? And the law left the attorney general basically with discretion to make decisions about those people who fell into that category.

And Justice Gorsuch talks about that. They're living in a kind of legal limbo. They don't have a clear understanding of their rights. It's all subject to the discretion of one individual, and that may change depending on a change of administration. So again, this idea that agency deference trumps the rights of the little man. And in this case, the little man is someone who's been a judge, a sex offender. Right. And so in this case, you have the, you know, the liberal justices or the so-called liberal justices. Basically, the United States won in a criminal case by winning over all four liberal justices and losing the conservatives. I mean, that's kind of stunning if you think, you know, if you look at results and how results usually line up,

all of the liberals said, no, kind of, you know, screw the criminal. All of the conservatives said, no, we should, you know, he deserves to be protected, too. And what was stunning to me in this case, so Justice Alito, you know, concurred, he did not join the dissent, even though he obviously agrees with the dissent's problems with the non-delegation doctrine. He just basically said, you know, I hate delegation, but I'll be damned if that's going to induce me to kind of help any criminal defendant or, you know, convicted offender. But what was strange is that if he had joined the dissent, it wouldn't have changed anything, right? Like the United States, it would have been a 4-4 affirmance.

The United States still would have won. So was it just that he- Would there have been an opinion if he had joined? I think that that is the big thing that he got out of this is what Melissa was alluding to, is he got the chief justice on record as joining Justice Gorsuch's opinion, advocating for the deconstruction of the administrative state. That's fascinating.

When the chief could just as easily have joined Alito, like that is one of the most important votes of this term, I think, no question, is his decision to silently join that writing. The other thing I think, you know, in the Kagan plurality opinion, I guess we're going to talk about Justice Kagan a lot today, but I think that's right. You know, I think she's an obviously hugely important player this term, but she is not prone to hyperbole, I don't think, ever. And for her to say that, you know, if Sorna's delegation is unconstitutional, which is what the Gorsuch opinion suggests, then most of government is unconstitutional. That is a stunning statement.

And, you know, Justice Scalia always, I think, had a hard time restraining himself from pointing out the really – the potentially most extreme implications of his adversary's positions, right? And sometimes he shot himself in the foot because in dissent, like in Windsor, he said, you know, look, there's a roadmap from here to marriage. And he was right, you know, and in some ways, like he helped, I think, a lot of the ensuing litigation. Oh, yes, there is a roadmap. He wrote it up. And I think there's another strategy in dissent, I think Kagan is more prone to, which is to minimize the implications of your adversary's position. To say the opinion doesn't actually do that much. It doesn't go that far. Think her concurrence not in dissent but in masterpiece cake.

And so she's not in dissent here obviously, but it's not clear how many people she's writing for. I mean she's writing for four here, but in terms of the next case or the next couple of cases. So I think it's quite meaningful that she is sounding the alarm the way she is, particularly in that sentence. I think public signaling, as much as stare decisis is for suckers, is a big part of this theme. People are trying to communicate outside of one first street to the people generally who may not be as attuned to what the court is doing. attract that much public attention under normal circumstances. So maybe you do have to resort to these kinds of, you know, maybe not extreme, but sort of much more heated rhetoric than you would ordinarily in order to kind of galvanize public opinion. So maybe that is part of the strategy. I mean, Justice Breyer in Franchise Tax Board versus Hyatt is a classic example of this. And it has this sort of Greek tragedy pathos. I mean, he's sort of, I am Cassandra, destined to know the truth and not be believed.

Like, you all are totally right. We believe you, Justice Breyer. You are seen here, Justice Breyer. I see you. Justice Breyer's opinion basically said, every time we overrule prior precedent, an angel loses its wings. Yeah. And Justice Kagan's majority opinion.

Miracle at one first street. Majority opinion, or plurality opinion, I guess. And Gundy really has a tenor where she basically is accusing the dissenters and Justice Alito of being interested in undoing the foundation of the American state. So on this public signaling point, there was two points I wanted to make from Nick and Franchise Tax Board that really go to what you were just saying. So first, you know, the Nick case was this takings clause case. It was this small case. It probably doesn't come up that much.

But Justice Kagan wrote this incredible dissent where she just completely tore apart the chief justice's majority opinion. And to me, what she was saying in that was, you know, if you're going to overrule stare decisis, I don't care if you're going to ignore stare decisis and overrule prior precedent. I don't care how little the case is. I'm going to overrule stare decisis, I don't care if you're going to ignore stare decisis and overrule prior precedent. I don't care how little the case is. I'm going to make it so painful for you. I'm going to make you feel so much shame about doing so that you'll maybe think twice beforehand. And so she she really just her her opinion is really incredible.

I would definitely suggest folks read it. And that was another kind of weird lineup from a results-oriented perspective. So you've got the more liberal justices screaming, federalism, federalism, we care about states and state courts. And you've got the conservative justices basically saying, let's open the doors of federal court to adjudicate local disputes, which is exactly the opposite of what I might expect in normal instances. And the opposite of what the conservative wing of the court has been saying for the last 20 years. I mean, there's a way in which Justice Kagan, over the course of this term, kind of became the progressive conscience of the court. I mean, it's a role that I think RBG

traditionally has occupied. So it's notable that there's a kind of shift there. But everything is kind of topsy-turvy. It's a world turned upside down where you've got the conservatives protecting criminal defendants. You have the liberals advocating the benefits of federalism. Like, this is a court that we haven't seen in a while. Kind of taking all of these cases together, what I thought to myself when reading several of them is, you know, this case wasn't really about the facts of this case.

Like, Nick wasn't really about the takings clause. That doesn't really matter. You know, Franchise Tax Board wasn't really about this immunity issue. They were about these broader principles and what this is, what these principles mean for the cases going forward. It probably makes sense to introduce that broader principle before we launch into a huge discussion of it. So we have been referring to stare decisis a lot. Stare decisis is the idea that the federal courts

shouldn't be overturning their prior cases, even when they think those prior cases are wrong. Now, everyone obviously agrees that sometimes you have to overturn prior cases. Otherwise, we are stuck with Plessy versus Ferguson, which, bless separate but equal, we wanted Brown versus Board of Education to overturn that. But then the question is, well, when should you overturn precedent and when shouldn't you?

And the doctrine of stare decisis is supposed to tell us when that is. And it protects a variety of important interests. For example, protecting reliance interests on the court's prior decisions, how workable it is, change understanding of the relevant facts. And those are all of the reasons that courts nominally consider when deciding whether to overturn prior precedent. But arguably, this term, we saw an important shift in the justices' formulations of stare decisis, and specifically, when they were saying they wanted to overturn precedent and when they should overturn precedent. And one of those super important writings at reformulated stare decisis was not the chief, but Justice Thomas's reimagination of stare decisis in Gamble, the separate sovereign case.

So in that case, Justice Thomas wrote separately to address his understanding of stare decisis. And what he said was, look, the court's prior cases consider this host of factors like, well, have parties relied on our decision such that it would be unfair to overturn that decision? Is the prior decision unworkable? Have the facts changed? Has the law changed? And he says, no. Instead, I just want to focus on whether the decision is egregiously wrong. Demonstrably wrong. Demonstrably wrong. If the decision is demonstrably wrong, well, then stare decisis doesn't require me to adhere to it. But if it's only just wrong, well, then stare decisis would require me to stick to that.

It actually goes further than that. If a decision is demonstrably erroneous, Justice Thomas says that the court has an obligation to overturn it. And I think this is really, really important because it not only is reformulating the doctrine of stare decisis, it's calling into question the last real precedent where the court articulated standards for overruling a case. And that, of course, was in 1992's Planned Parenthood versus Casey. So everyone has been talking about how it's very likely that Roe versus Wade will be overruled. I think it's actually more important to think about the court taking aim at Casey because Casey not only upholds Roe and Roe's articulation of a woman's right to choose

an abortion, it actually enunciates a clear set of factors that the court has to go through and think about before they actually overrule a case. And Justice Thomas, in many of his writings this term where he's sort of questioned or been skeptical of the principle of stare decisis, has pointed to Casey repeatedly. And Casey is not just about abortion. It is also about this procedural effort on the court's part. What kind of steps do you have to take before you can actually overrule something? And he's saying, you don't have to go through this analysis at all. All you have to know in your heart, in your mind, is that this was demonstrably erroneous,

and you have an obligation to do something about it. And what's interesting about this demonstrably erroneous standard is that by reading his opinion, I kind of got the feeling that by demonstrably erroneous, he just meant that he disagreed with it. So he said, you know, if it goes either way, if you're not sure,ed with it. So he said, you know, if it goes either way, if you're not sure, then obviously we won't overturn it. You know, but I got the sense he just meant if it's wrong, as if that's actually, there's generally consensus about whether something is wrong or not. I mean, so many of these decisions are not unanimous. So that demonstrably erroneous standard is very strange to me. I mean, I do think it's important to keep in mind that was not a majority opinion. However, if you look at his majority

opinion in Franchise Tax Board, the stare decisis discussion is two paragraphs, maybe? And it was basically something like, the prior decision was really wrong. And so we're going to change our mind now. And there's not a lot of our mind now. And there's not a lot of reliance interests. And there's not a lot of reason not to change our mind. So let's go for it. So, you know, while yes, Gamble was not a majority, he kind of applied that reasoning in Franchise Tax Board. Yeah. So his majority opinion in Franchise Tax Board versus Hyatt gave four reasons for overturning Hyatt. The first three were it's wrong and it's wrong on a few different dimensions. And the last reason was, yeah, there's some reliance interest, but we're not convinced. And that was a majority

opinion. And then we also saw some other justices channeling this idea that it's okay to overturn precedent when that prior precedent is really wrong. So for example, we've talked about the chief justice's opinion in Nick versus Pennsylvania. And in that case, the majority opinion says, look, our prior case was not just wrong. Its reasoning was, quote, exceptionally ill-founded. That is, it's not just wrong, it's really wrong. And then in oral argument in Franchise Tax Board versus Hyatt, you have Justice Kavanaugh asking a question about, well, what does stare decisis mean? And we're going to play that clip here because it also channels this idea that it's okay to overturn precedent when that prior precedent is not just wrong but really wrong. The question is how we figure out what the compelling reason is.

And that's very difficult. And you say nothing has changed. That's true in a lot of cases where the court has nonetheless overruled a prior decision. And so how are we supposed to think about it? Is it enough, for example, if we think it's egregiously wrong and the prior decision has severe practical consequences and there's no real reliance interest at stake? Is that enough? How to apply that to a particular case is hard. But what I just said, in terms of egregiously wrong, severe practical consequences, no real reliance, is that enough? I don't think this theme of stare decisis is for schmucks is just confined to this term. I think

we've seen it maybe not quite as pronounced as it's been this term, but we've seen it in the last couple of years with the Roberts Court. So last term, the court in Janus overruled Abood, which is a precedent from the 1970s. And it's really interesting how incremental the court has been when it has done things like this. So there was Abood in the 1970s. There was Friedrich, which was maybe two years before Janus. So an intermediate step where they sort of called into question or found some skepticism about the ruling in Abood. And then in Janus, there's the death knell, and now it's over. And we told you it was over because we already questioned it in Friedrich a couple of terms

before. So this is not a new thing. I just don't think we've ever seen it so nakedly presented as we have this term. And it goes to Jamie's point, what is consensus? Consensus seems to be five. Yeah, the demonstrably erroneous standard, it just seems kind of breathtaking in its hubris, right? It is literally my view and maybe the view of four others if I can amass a majority. And, you know, it just disregards the kind of aggregated wisdom of, you know, typically these cases involve not just the majority that hands down the case, but a number of intervening majorities that have relied upon and lower federal courts and litigants. And so, you know, so it sort of rejects the potential wisdom of any other players, right, in this sort of constitutional

system, but, you know, five people on the current Supreme Court. And in a way, I do feel like the theme of sort of signaling and then actually in some ways moving away from deferring to administrative agencies is thematically linked to this kind of creation of sowing doubt in the power of stare decisis, which is just it's hubris, right? It is this aggregation of power, right, sort of to the court and a rejection of the kind of decision-making authority and wisdom of all other players, whether that's previous justices or administrative agencies. And it is the court and the court alone and five members of the court that knows best. I also think that the decisions this year that you saw, you know, some concurrences,

some dissents that were inviting people to bring other cases that would offer the court the opportunity to overturn prior precedent, that is, you know, directly attributable to what happened before Janus. So Janus was this labor law versus Quinn in probably 2011, 2012, that wasn't about this issue at all. And Justice Alito wrote this gratuitous, it was either a concurrence or part of a decision that said, oh, by the way, this whole agency shop fees thing might be unconstitutional. Why don't you, why don't some people bring some lawsuits about it? And immediately you saw lawsuits brought. And then that led to the Friedrichs case, which came up to the court, but ended up being, I'm not sure if it was digged or if it was affirmed for four after Justice Scalia died. And then the next year you saw Janus, in which Justice Kagan's dissent said, this overruling of Abood is part of Justice Alito's six-year crusade to get this decision overturned.

And so I think that what you're seeing is a lot of that. You know, basically, Abood was, Janus was the brainchild for inviting people to try to overturn prior precedent. And you're just seeing it happening more and more. And in the franchise tax board decision, it's interesting, the only case that Justice Thomas really cites when talking about stare decisis is Janice. And I feel like that's a little poke. And then in discussing stare decisis in his dissent, Justice Breyer cites only Casey, which I feel like is also a little poke and a big signal

to the public and to the other members of the court. I think it was the Chief Justice who authored Nick that cited Janice for the court's standard on stare decisis. And that decision really does, I think, provide a roadmap for how the court might undermine and then eventually overrule some other precedents in the near future. We've kind of been talking around this, so maybe it just makes sense to go here now, because it feels like a lot of the stare decisis discussion is almost shadowboxing around Roe. And we also got a separate writing this term that made clear that the future of a Roe and some of the courts-related cases are very much on the justices' minds, including the justices who have been offering reformulated formulations of stare

decisis. Melissa, did you want to talk about Justice Thomas' concurrence in Box? Sure. Let me set up Box a little bit. So Box v. Planned Parenthood is a case coming out of the Seventh Circuit that deals with two provisions of an Indiana law that was signed into law by then-Governor Mike Pence. Obviously, Mike Pence went on to greater things, but this law remained in Indiana. The first provision we might actually think about is a non-discrimination provision, which says that you cannot have an abortion if you are doing so solely for the reason of sex selection, racial selection, or you are trying to terminate a pregnancy because of a disability.

And there is an exception in the law for disabilities that will lead to the death of a child born within three months of the birth. The second provision is one dealing with how fetal remains are disposed of. And traditionally, fetal remains would be incinerated alongside other kinds of surgical waste. But this law actually requires abortion providers to dispose of them via cremation or burial, the same way you would deal with a human body upon death. So I just want to note that I think both laws are about imbuing the fetus with attributes of personhood. I mean, the fact that the fetus is subject to non-discrimination protections and then

subsequently subject to the same kind of funereal rights that humans would have. So again, part of a larger campaign to limit abortion by imbuing the fetus with these personhood aspects. The case was, the laws rather, were enjoined by a lower court, and then those injunctions were upheld by the Seventh Circuit, although one judge, Judge Mannion, issued a really stinging concurrence to the majority opinion saying that he was joining it, but only because he had to, because the court's settled precedent required him to. But if this precedent wasn't here, I might have more options to do what I really want to do here. And so then, of course, it goes up to the court. And the question is whether the court will grant cert to hear a challenge to both of these provisions. The court decides to grant cert on the disposal

provision, and it finds that the disposal provision is actually fine, and it upholds it on rational basis review, not the undue burden standard that Planned Parenthood versus Casey requires, because Planned Parenthood of Indiana and Kentucky didn't actually argue the undue burden standard in that case. It said that it was, as a matter of rational basis, unable to stand constitutional scrutiny. It then turns to the nondiscrimination clause and says that it's not going to grant cert on that portion of the law and, in fact, allows the injunction to stand. That's what prompts this stinging concurrence from Justice Thomas, who says that the court at some point is going to have to take up this problem of eugenics abortion.

And this is a really kind of fraught term. So he, in this opinion, writes this entire meditation about the history of eugenics and its relationship to reproductive rights. And he notes correctly that Planned Parenthood founder Margaret Sanger was part of the eugenics movement. It's not a complete history, though, because he is linking abortion, not just birth control, but abortion to this history of eugenics. And he is arguing that this history suggests that if placed in the wrong hands,

abortion can have eugenicist potential, and in fact, will lead to the deracination of vulnerable communities. And he specifically notes the prospects of deracination for the African-American community and also for the disabilities community. And this is such an interesting opinion as a substantive matter, also a jarring opinion, because one, the history that he is offering is really incomplete. And he cites a number of different historians who have written about this, including Adam Cohen, who then went on another podcast, Dahlia Lithwick's Amicus podcast, to issue a rejoinder. Like, this is not what my history said. Like, I actually offered a complete history of the eugenics movement, and Justice Thomas sort of selectively cherry-picked this

history. So it's not clear that it's correct history, which is quite interesting. What I think the real thing that's going on here for Justice Thomas is, is that this is an alternative theory for further limiting abortion, and it is one that may be more palatable among certain groups that have been less receptive of abortion opponents' efforts to hinge laws restricting abortion to ideas that they are promoting maternal health or the interests of the woman. That has sort of fallen on deaf ears as people recognize a lot of these restrictions actually don't do much

to promote the health of women or to promote women's interests, and they're really about limiting abortion. This sort of social justice eugenics angle is offering this alternative framing for this. This is not about the woman. In fact, the woman is a villain, a villainous eugenicist in Justice Thomas's imagining. What's really going on here is that these laws are aimed at deracinating these communities. So it's using abortion as a wedge issue among social justice communities, the women's rights communities, the civil rights community, also the disability rights community, and floating into the public

discourse this idea that abortion and contraception are elements and agents of genocide, essentially. I think that's an important aspect of what his opinion does, is that it inserts into the public discourse this discussion where people are now talking about the relationship between abortion and eugenics, or between birth control and eugenics. And that is definitely part of what that opinion was trying to accomplish and did accomplish. You mentioned Adam Cohen going on Dahlia Lithwick's podcast to discuss the relevant history. He also wrote a piece in The Atlantic

indicating the different ways that Justice Thomas misused his history that he had recounted about the history of the eugenics movement and its relationship to birth control. And one important point that he made was, you were noting, Melissa, that in Justice Thomas' telling, the women seeking abortion are the eugenicists. But I think what Adam suggested is that when you look at these two different sets of cases, you know, what unites them is, you know, the state trying to determine

who can have a child and when. So in the abortion context, it is the state telling a woman you have to have a child. In the eugenics context, it is the state telling a woman, no, you can't have a child. And that withdrawal ofasing, I mean, as soon as I read it, I thought, oh, oh in debates around abortion. And so I do think that it's important to read carefully the language choices of these justices. And, you know, when you mentioned the concurring opinion in the Seventh Circuit, Melissa, it made me think of something that, you know, I think we all, one big question in terms of the next term and the next few terms of the court is when and if the court is going to have a frontal confrontation, right, with the future of Roe and Casey. And I think we've all been assuming that there is some chance that it might not be for a while, right, that it could be the case that these extreme state laws, you know, bans or near bans on abortion are obviously unconstitutional and any federal judge anywhere in the country, no matter what president appointed

them, will so find, right, when there are challenges brought. And that does seem, and so the court is going to be in control, right, of if and when it takes up this question, because for the time being, none of these laws will go into effect. I think that remains the most likely possibility. But I always, or I think I've increasingly felt like there maybe is some outside chance that some, you know, you get two appellate judges on a court of appeals somewhere who find a way to uphold one of these really extreme laws, and then the court has no choice, right? That would force the court's hand. So I do wonder whether it's entirely right that the court has total control over when this question comes to it. Well, I mean, look at the Fifth Circuit. Right. So could you see two judges on

the Fifth Circuit if a state, you know, I mean, not just has all the clinics closed. Have you read Jim Ho's opinions? Right. So not just a trap law, but a ban. Could you get two Fifth Circuit judges to uphold not just an extreme trap law, but a ban? And then the court has to take it up. So it might be the sort of thing that happens faster than we might imagine and that the court might prefer, in fact. Well, it's also there are so many precedents on the table here. I mean, everyone keeps talking about Roe. Roe was essentially gutted by Casey. The only thing that really remains of Roe is this articulation of a right to choose. Casey is really where all

the action is, which I think is why you see Casey, like they're shadowboxing with Casey in so many of these opinions, which are about other things like sovereign immunity and the administrative state. And then there's also Whole Women's Health, which was decided just in 2016. It actually provides more teeth to the Casey standards and puts the onus on judges to interrogate the state rationales for restrictions to abortion. And you see lower courts, as Leah has written about, basically ignoring it. The Fifth Circuit, which had the case in Whole Women's Health that went up to the court, in this new case, June Services, is looking at a law that is virtually identical to the one struck down in Whole Women's Health and saying this is different because that case was about a Texas law that required admitting privileges. This is about a Louisiana law that requires admitting privileges. Two different states.

Therefore, it's different, and this precedent doesn't apply. And, you know, I think the court has signaled that they're not really interested in lower courts completely disregarding what it has done. But I think this, I mean, that's how these kinds of things will shape up and present themselves. Like just a couple of judges deciding like, no, the time is right. And you saw Judge Mannion signaling this in box. And I think we're going to see more of that. One thing that didn't surprise anyone, I think, after seeing a lot of the opinions from this term is that Justice Thomas did not retire at the end of the term. I think things have gotten more fun and interesting and he has stayed with it. Job satisfaction is way up for him.

So one question I have, though, on this, because, you know, there's a lot of a lot of folks talk about how, you know, stare decisis is just it's for suckers no matter who's in the majority. It's used in a policy-driven way. I mean, that's one of the things that Justice Thomas said in one of his opinions. This is just used in a policy-driven way. The factors are so malleable as to be toothless, and you can just ignore the ones you don't like and pay attention to the ones you like. And so I guess my question is, you know, is what's happening now any different than what would have happened if there were a Justice Scarlett on the court? I mean, does anyone here think that if there were five votes to reverse Fourth Amendment precedent saying that Fourth Amendment violations

are based on an objective rather than subjective standard, that Justice Sotomayor wouldn't immediately jump to overturn those precedents? So I guess I'm not sure. And that's an interesting hypothetical question, but I just think it imagines an alternative universe that doesn't actually exist and isn't going to exist for some time. And what I mean by that is you have the nominees, the most recent nominees to the Supreme Court, were appointed to the court after as Court of Appeals judges. They actively questioned existing precedent and advocated for that precedent to be overturned. When Justice Sotomayor was then Judge Sotomayor on the Second Circuit, I don't recall her issuing opinion after opinion saying, here are the five Supreme Court opinions that I would actually like to overturn.

She did not. Right, exactly. So that, you know, two different parties are appointing, you know, two different kinds of justices to the Supreme Court. Justice Sotomayor and Justice Kagan, I respect them very much. I love them as nominees and justices. They are not revolutionaries seeking to radically rethink the entire project of American governance or jurisprudence. And Justice Gorsuch, we talked about Justice Thomas's reimagining of stare decisis. He also issued a separate writing that was joined by the other most recent nominee, Justice Kavanaugh, and also Justice Thomas, in which he advocated for another exception to stare decisis and Kaiser versus Wilkie saying, well, stare decisis doesn't

require me to adhere to any decision that governs a method of interpretation as opposed to announcing an interpretation of a particular provision. And that's crazy because stare decisis is probably most important for questions of statutory interpretation. Well, also stare decisis is a method of interpretation, right? So like read for all it is worth, right? Justice Gorsuch's exception would say, well, I don't have to adhere to a stare decisis, which is a method for interpreting the Constitution. So basically, Justice Gorsuch said in that case, stare decisis would only apply to what this particular statute means. It wouldn't apply to the entire framework

of how we determine whether a statute, whether a regulation is a reasonable interpretation of a statute. Right? Like basically it says the legal test that's created by an opinion may not enjoy stare decisis, only the very specific narrow holding of that opinion. Is that pretty much right? I think that that's right. Although it's such an ill-defined exception that, you know, we don't really know what it means until they get to go to apply it. But just to kind of circle back on this question, you know, you get a sense of the different justices' attitudes towards stare decisis, not only in their writings, but also in the questions that they ask at oral argument. And I wanted to play this quick clip from Justice Gorsuch in Herrera, one of the cases where the

Supreme Court overturned a prior precedent, where he's just like, yeah, let's do it, guys. What do you say to the suggestion that we just be done with racehorse and overrule it? The government would be fine with that. Or you have this question from Justice Alito and Hyatt, where he says, actually, stare decisis is bad for the court, because we think adhering to precedent will lead people to respect the court. But the exact opposite is true. Mr. Chemerinsky, do you think that the public would have greater respect for an institution that says, you know, we're never going to admit we made a mistake because we said it and we decided it, we're going to stick to it even if we think it's wrong, or an institution that says, well, you know, we're generally going to stick to what we've done, but we're not perfect.

And when we look back and we think we made a big mistake, we're going to go back and correct it. Which kind of institution would they respect more? So is this a good point to bring up this idea of the Constitution in exile? Yeah, let's just do it. I think it might be. Let's do it. The Constitution in exile refers to this article from 1995 by Judge Douglas Ginsburg where he bemoans these lost provisions of the Constitution that have essentially been jettisoned and exiled through the rulings of the New Deal court and then subsequently the Warren court. And then Jeffrey Rosen wrote something about the Constitution in Exile. Cass Sunstein wrote about the Constitution in exile and efforts to recuperate it. And then Oren Kerr said that Cass Sunstein was overstating it. So it's actually

generated a fair amount of discussion over time. But the idea is that there is this lost Constitution where there are limits on the other branches and courts have limits themselves. And we have lost all of this. And what we need to do now is recover and recuperate that constitution in exile, bring it in from the cold and restore it once again to its proper place within the constitutional order. Part of that project, I think, involves deep, deep skepticism of the regulatory state, that vestige of the New Deal that we all live with. And as Justice Kagan said, if this is unconstitutional, all government is unconstitutional because so much of our government is embedded in this idea of a regulatory or administrative state.

And you are beginning to see a lot of that coming out in the opinions, like the interest in abandoning accepted principles of stare decisis in favor of this reformulated stare decisis is part of the project of bringing in this lost constitution from the cold and restoring this constitutional order. So I think this is really interesting. And people have talked about this court is basically focused on rolling back the New Deal and putting us back in the Lochner era. And others have criticized this as hyperbolic. I'm not sure that it is hyperbolic if you think about these different threads and weave them all together. So in this term, we saw an assault

on the administrative state that didn't really take hold, but has been floated into the ether. And I think, you know, you have to think about that in tandem with things that have happened in past terms, like the whittling down of the Commerce Clause over time. And you can sort of see a picture emerging where there is an effort to really design sharp limits on congressional authority to legislate and regulate. Yeah, we're going to party like it's 1935. I didn't, my people did not do so well in the 1930s. I don't think any of our people were doing so well in the 1930s. So that, unfortunately, is about all the time we have to actually do a term wrap up, though, as we mentioned in our teaser, we will also have one, maybe two other episodes over the

course of the summer, and we'll certainly be discussing what is in store for next term and also some of what remains from last term as well. But to end this segment, we wanted to do a brief discussion about how this podcast fits into this culture surrounding the Supreme Court. That is why we wanted to make a podcast about the court and the legal culture that surrounds it. So it's no secret that a lot of the Supreme Court bar and the Supreme Court commentariat is very pale and very male. So you look at the statistics about who was arguing this term, 124 individual advocates, 21% are women, and almost 80% are men. And that is actually up from the previous term. And so we wanted to kind of change the look and the feel of what it means

to be a Supreme Court commentator. Because it's SCOTUS, not Brodus. Or SCRODUS. Definitely not SCRODUS. Definitely not SCRODUS. And, you know, part of what is about the legal culture that surrounds the Supreme Court, that maybe is related to just the composition of the Supreme Court commentariat, is the sense that you have to be very serious and very muted to talk about the very serious business that the court is doing. And the way to be very serious is not to have opinions or at least not to express them and to talk about this court

in a very formal proceduralist way that misses how important the court is as an institution to American culture. And I think is just not the only way to comment about the court or to comment about it well. It's also about commenting on the court in a way that feels very clubby and insidery, like not explaining what you mean by a dig or this. And I think we really want to try and

democratize this, not just for lawyers, but anyone who's interested in the court, and everyone should be interested in the court. And one of the things we want to do is provide information that is accessible to people who have law degrees, who don't have law degrees, who are getting law degrees, because this institution is vitally important to all of us. And so we want to spend time on the podcast talking not just about the substantive doctrine that emerges from the court's cases, but about the court's role as a cultural institution, about the interpersonal dynamics on the court. None of that is not serious. It does have consequences for the development of American law, but it's inherently interesting

and important in its own right. So we want to unapologetically spend time talking about that part of the court, too. The shade. Right. We like the shade. No tea, no shade. Or all tea, all shade. Who knows? Maybe at least 10 minutes of tea and shade. Right. We like the shade. No tea, no shade. Or all tea, all shade. Who knows? Maybe at least 10 minutes of tea and shade.

And we know that today's been a fast-moving episode because there's a lot of ground to cover. So we probably haven't done as great of a job as we're going to do in the future at explaining, kind of breaking down a lot of concepts because we really wanted to cover these big cases. But we're really committed to doing so in the future. And that's what we'll be aiming towards. This was a rollicking first run at a full-length episode. And we really appreciate you staying on board for all of it. If you love this episode, please leave us a five-star rating on your podcast app of choice and subscribe. And you can follow all of us on Twitter as well. And we look forward to your feedback and your commentary. The first 20 people to direct message us on Twitter or to add us on Twitter, us being the show, at strictscrutiny underscore, with a screenshot showing you've subscribed'll get a strict scrutiny sticker. Say that 10 times fast.

Thanks so much to our producer, Melody Rao. And thank you for listening. As we said last time, we'll start up for real in the fall, but we will hope to drop one or two other episodes over the course of the summer before then. And thanks to Joseph Rivera here at NYU, who's helping us out with all of our technical issues on this side. See you next time. Court is adjourned.