Strict Scrutiny - Some Geniuses

Episode Date: November 2, 2021

Kate, Melissa, and Leah recap the oral arguments in the S.B. 8 cases on Monday, November 1st. 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. Welcome back to Strict Scrutiny, your podcast about Texas SB-8 and the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Kate Shaw. I'm Alyssa Murray. And I'm Leah Littman. Today, we're going to be recapping the oral arguments in the SB-8 cases. And we wanted

to provide you with a quicker recap and also a separate episode in order to ensure that we have enough time to give these cases, as well as the other cases on the court's November calendar, the kind of tender, loving care they really deserve. So the court heard oral arguments in two cases on SB8, Monday, November 1st. The first was filed by abortion providers against various state officials, and the second was the DOJ case filed by the United States against the state of Texas. Okay, so maybe since we're an SBA podcast, let's give some brief kind of thematic overviews before we dive into our discussion of the arguments today. Okay, so the first lawsuit was the one brought by the providers. They named the state attorney general, state judges, state clerks

as defendants. They did that because Texas had delegated enforcement of the lawsuit to private individuals. And Texas designed the law enforcement of the lawsuit to private individuals. And Texas designed the law this way in order to have the law go into effect and avoid judicial challenges that would potentially result in the law being enjoined. And under a bunch of Supreme Court decisions, as we've talked about previously, private individuals can't sue states for violating federal law. But in a decision known as Ex Parte Young, the Supreme Court said that private individuals can name state officials as defendants in part to ensure that states remain bound by federal law. But they have to name a state official who has some connection with the enforcement of the law. Otherwise, they're just suing a representative of the state and making an impermissible end run around the rule they can't sue states directly. Okay, so that's the first lawsuit. The second lawsuit was brought by the United States. It named the state of Texas as a defendant, and the United States argued it could bring this lawsuit in part because Texas had

designed a law that by that time had the purpose and effect of chilling constitutional rights and evading judicial enforcement that would secure the supremacy of federal law and vindication of constitutional rights. All right, so should we start with some like overarching observations about the arguments? Leah, I know you had some thoughts. I do. So the one I wanted to start with, and this is going to cut across both arguments, is Justice Kagan was on another level. Reggie John had been to chambers. He had brought her coffee. She was fueled up and for bear. Yeah. Where to start? I think one remark that will hopefully go down in the Hall of Fame is, and let's just play it because I'm not going to be able to capture. You can't do this justice. No, I cannot. Only Regé-Jean Page and Justice Kagan could read this line. So we'll hear it from her.

And the fact that after all these many years, some geniuses came up with a way to evade the commands of that decision, as well as the command that the broader, even the even broader principle that states are not to nullify federal constitutional rights. And to say, oh, we've never seen this before, so we can't do anything about it. I guess I just don't understand the argument. The reason I love this, the reasons I love this. One is the snark, right? Like, so you guys think you're so smart, right? Like, this is the nightmare we talked about on our preview, standing up in front of the Supreme Court and looking at Justice Kagan and telling her, I've outsmarted you. And Justice Kagan's like, no, no, no, no, no, no, no. You cannot pull one

over the queen. Right. Like that's just not how this game works. But you're going to take a shot at the queen. You best not miss. Exactly. Yeah. But, you know, it also, I think, reflects a substantive point, which is, do you really think ex parte young, the foundation of civil rights litigation, and the mechanism by which we hold states to the supremacy of federal law is so easily evaded and just has this loophole, you just all of a sudden figure it out? I mean, ex parte young is an equitable remedy. And the point that she, I think, was invoking is, you know, a point that Justice Story, among others, have made, which is like equity defends the law from crafty evasions,

delusions and new subtleties invented and contrived to evade and delude the common law. Like this isn't just something you get to say, ha, ha, ha, right? I designed the law in this one weird way and, you know, figured out the solution. That was not her only memorable line. Basically, we could just package this as a two CD compilation of Elena Kagan's greatest hits during this oral argument. So here's another one that I particularly liked. And General Stone, your answer to Justice Kavanaugh, which is go ask Congress. I mean, isn't the point of a right

that you don't have to ask Congress? So this is obviously a colloquy with Texas Solicitor General Judd with two Ds, Stone. And she's basically asking, like she's trying to get at him, like what is the point of going to Congress here? Like, is the idea here that Congress has to write a statute before you can actually sue here? And he's kind of like, yeah, that's the point. And she's like, no, that's not the point.

That's the opposite of the point, Judd. And I think some of the disdain we're hearing in the tone where she's like, you know, this is kind of the point of a right dum-dum is because earlier in an exchange, Texas SG Stone had said if he could modify her hypothetical a little bit. And it's like, friend, she is a former law professor. Do not mess with the hypothetical. The hypothetical is what it is. Like literally, I had I had a student who once was like, what if there are aliens who come out? And I was like, get out of here with it. And that's how she was today. She's like, there are no aliens. Don't mess with this hypothetical. Like we're done. There were so many instances of this dynamic where we have pointed this out before, but

the lack of respect for female advocates and female justices was, in my view, repeatedly on display throughout this argument. And, you know, on some level, you can't help but respond to it. She also had this great moment in the United States versus Texas argument, the second argument, when that was like great for so many reasons. So here, well, let's play the clip right here. I guess I do want to ask a question about that, though. I mean, if that's right, you know, and we say that, we would live in a very different world from the world we live in today. Essentially, we would be inviting states, all 50 of them, with respect to their

unpreferred constitutional rights, to try to nullify the law that this court has laid down as to the content of those rights. I mean, that was something that until this law came along, no state dreamed of doing. So she is like laughing at the beginning of this question, which you don't hear that often. It was like so delightful. And the other reason it's kind of great is that the preceding question that she put to Stone was about his failure to answer a preceding question from Justice Sotomayor. So she basically says, I am going to answer that question. And then he kind of says, oh, I thought I did and then sort of does. And then she goes on to say, well, actually, I do have this other question. So it's like this really effective tag team that you don't always see in role arguments.

And I loved it. Did you all ever watch the Gorgeous Ladies of Wrestling? Oh, yes. Glow? This is like, do you remember Tina Ferrari and Ashley Cartier? Yes. There was an original one in the remake, right? I'm so terrible at this stuff.

There was an actual TV show about wrestling. No, no. I knew The Glow, but recently, right? But that was a remake of a classic show. That is like a show with a plot.

This had no plot. This is like, are we on the same page, Leah? No. So I watched the show with a plot. Okay. So if you were a child of the 80s and you lived in Florida and had just like basic access, like cable, on Saturday nights, there was a show called The Gorgeous Ladies of Wrestling. And it was like actually like a fake, like WWF only with women. And there were these two wrestlers, Tina Ferrari and Ashley Cartier. And their whole thing was like they were blingy. But they always tag teamed and they always had each other's backs. And like,

this is literally what I thought of today. That sounds exactly, I have literally no idea what you're talking about. Melody, take this out. No, don't take it out. The gorgeous ladies of wrestling, Sotomayor and Kagan edition. Definitely that's Kagan. poo-poo some of the hypotheticals that the justices are asking him and then attempts to correct Justice Kagan. And let's just hear how that goes. Spoiler, not well. The second point being to the extent that we're talking about sort of the extremist hypothetical where it's a $5 billion sanction. And by the way, court is on the moon. But by the way, this seems a pretty extremist hypothetical, actual, you know, I mean, because the actual provisions in this law have prevented every woman in Texas from exercising a constitutional right as declared by this court.

That's just not a hypothetical. That's an actual. That's just not true. There's evidence in the record that estimates that the number of abortions occurring right now in Texas is between 50 and 63 percent. I'm sorry. You're exactly right. I should have said every woman in Texas who has not learned and has not made a decision before six weeks. Like the speed and precision with which she responds is just deadly, right? Like you cannot stand in front of her and be like, nanny nanny boo boo, right? Like I know more than you. It's just not going to end well. On the preview, I had expressed a desire to hear her question Jonathan Mitchell and read portions of his brief and kind of ask him about them. That did not materialize despite my manifesting it. Instead, I think we arguably

got something better, which is Justice Kagan giving Jonathan Mitchell the silent treatment. Maybe the best insult ever. Like, I'm not going to bother. But I guess like, I'm curious to hear what you all think was going on. Because a part of me wonders if she went into the argument and thought, I'm not going to ask this clown a question. Or by this point of the argument, after she had just obliterated the Texas Solicitor General and could barely contain herself, just getting increasingly irate at the stupidity, you know, coming back at her. Was she just like, I need to kind of tap out from this one or I'm just gonna like drop a few F-bombs and, you know, drop my mic and be like hanging out? Like ultimate Queen's Gambit is just like, not even just to sort of say like, it's done. You're not even worth my time.

I think this is where the tag team, like they had each other's backs because Justice Sotomayor in a colloquy in the United States versus Texas with Solicitor General Stone went through the litany of sort of Jonathan Mitchell style arguments, including some of the arguments that he makes in his brief before the court in Dobbs. So she asks about like, you know, can we just use this kind of enforcement mechanism to curtail gun rights? What about same-sex marriage? What about sodomy? What about contraception? And so she runs through the whole litany. So if her girl Elena didn't have it, like, didn't have it in her for that moment, like, Sonia was like, I got you, boo. Like, I'll do this. I'll ride for you. I also had this thought in the moment, which was,

I was really surprised she didn't, you know, take any of that time. And then when the chief was,, you know, going surreptitiously through people, I was like, oh, surely now, but then she didn't. She passed. But I had a thought then that, you know, the court is notoriously, especially non-transparent about how it makes decisions on things like motions to, you know, share argument time and things like that, right? So the court doesn't always grant divided argument even if everybody agrees. And I wondered whether she was like, why are we giving – why did we give this guy time and actually hadn't agreed in the first instance to the decision to allow him to argue at all? And I thought this might have been a quiet way to register protest. It's impossible. Oh, yeah. That's interesting. I hadn't thought about that. So despite my suggesting no one should ever attempt to tell Justice Kagan that they know something she does not, I did want to highlight one moment in the oral argument, not because I

think I know something she does not, but because I think some of the questioning might have overlooked how crazy some court of appeals have gotten with ex parte young in requiring plaintiffs to identify particular state officials who have a connection with the enforcement of a law. So let's play this question that Justice Kagan asked the Texas AG. Suppose this were a normal law, you know, a heartbeat law, you would sue the attorney general, wouldn't you? After she asked that question, she then expressed disbelief that there would be questions for that kind of law about whether you could sue the attorney general.

Are you saying that in a normal heartbeat abortion restriction, a suit against the attorney general would not be sufficient because local district attorneys are bringing the suits. But nobody would dream of bringing a challenge to ex parte young in that circumstance. The reason I want to flag this is lower courts, in particular the 11th Circuit, in a case called Lewis about some minimum wage restrictions that the state of Alabama had enacted, as well as the Fifth Circuit in Texas Democratic Party versus Abbott, they've actually made quite a mess of Ex parte Young and have held maybe you can't sue the attorney general in those circumstances. That

is where local officials would actually be the ones implementing or prosecuting the law. I think those decisions are wrong, but I think Texas SB8 is partially designed around them. And those are the decisions that Texas Solicitor General was referencing when he was suggesting that, you know, those lawsuits maybe wouldn't be permissible. to kind of set the record straight that ex parte young is not this crazy game where you have to find and name the exact right official as long as you're naming like some state official who again bears some connection with the enforcement of the law. I will just point out here that maybe one of the greatest lines of oral argument and again one that should be included on this two-disc compendium is suppose this were a normal law. Hypothetically speaking. Although I have to say, I do wish you wouldn't call it a heartbeat ban or heartbeat law.

I think she called it that, right? Like it's obviously like a, you know, a very deliberately designed term that, you know, medical experts say is like obviously medically and anatomically inaccurate to describe fetal activity at six weeks as heartbeat. But everything else about that Kagan quote, I loved. So I wanted to just play one beat about why I stan Justice Kagan and why this podcast occasionally devolves into a Justice Kagan fangirl podcast, which is sometimes I think the Justice Kagan complimenting gets a bad rap along the lines of, you know, this is all kind of like inner lawyer inside baseball politics. You know, she's just playing this kind of cleverly lawyer game that only appeals to certain lawyers and is never going to like move the ball or kind of like inspire the kind of, you know, views or

response that say some of the writings that like Justice Ginsburg or the Justice Sotomayor sometimes do. And I guess I think like, there are different kinds of justices and different justices are good at different things. And the thing that she is better at than anyone else is illustrating this kind of legal analytical flaws in an argument with these questions, hypotheticals, and immediate exchanges. That's not always going to move the ball, right? Like, I don't think that skill moved any of the conservative justices in Brnovich, even though she deployed it, and she did it very well. But sometimes it has the chance of doing so. And I think it's worth it, very worth it, to have someone on the court who can do that at that caliber.

I agree that we sometimes do tip into being a Justice Kagan Stan podcast. And today I have no problem with that. Like I said, I'm here at home pressing discs to send out like the Time Life Company. She was great today. Justice Sotomayor also had some great moments, what we're going to get to later. But I just want to highlight one of them for its utter memeableness. Like it's so good. So here's Justice Sotomayor. Assume I disagree. I'm just going to start saying that all the time. Like when my kids ask me, like, can I go to bed at 10 o'clock? Assume I disagree. I'm just going to start saying that all the time. Like when my kids ask me, like, can I go to bed at 10 o'clock? Assume I disagree.

Can I eat this candy for dinner? Assume I disagree. Because like that is me all day long. I always disagree. I love it. If you want to project that all day long, Melissa, you are in luck because as oral argument was happening, I actually made some merchandise which has assume I disagree all over it. Like to go with your flagrantly unconstitutional mug? To go with a flagrantly unconstitutional mug, to go with the, quote, some geniuses t-shirts,

just did all of it. Unfortunately, I put the assume I disagree merchandise under the collection that I labeled Kagan capsule. But I will correct that since that was a Justice Sotomayorism. It's a tag team. It's a tag team effort. Like it takes a village to slay a dragon. I like that. I just have to underscore that just like Leah is the paragon of productivity. And like while the rest of us were sort of trying to follow what exactly Texas was even arguing here, Leah also created a merch line that she then uploaded to our website. Well, Leah and I were like talking to each other over Twitter the whole time. Probably not super efficient.

No, it is. I feel like this is also the cake team, right? Like this is a Justice Sotomayor, Justice Kagan thing because like we're listening to this real time and it can be difficult to catch absolutely everything and process it i missed some lines right and so like you're feeding those to me and like we're just like you know highlighting this all together you know gorgeous ladies of wrestling we were like that's us the gorgeous ladies of podcasting exactly glop doesn't sound great as glow but you you know. Glot. That's us.

Glot. We just spell the whole thing out. We don't need the acronym of podcast. Gloss of strict scrutiny. Gloss is better. Gorgeous ladies of strict scrutiny. That is actually great. Yeah.

I like this. Let's make a t-shirt for that. Okay. Back to the arguments, though. You glosses. Okay, so there seemed to be some unity among the justices to protect their institutional authority. That was a theme that I think you kind of heard from a number of the justices. Justice Barrett seemed to give voice to this. She had some pretty good questions.

Specifically, she seemed concerned about – I don't think Texas particularly satisfied her that the law does provide for the full airing of the constitutional defense in state court, which was what Texas was trying to argue, right? So don't worry about it. There doesn't need to be a federal forum. And look, these things can be sorted out in Texas state court. And I don't think Barrett bought that. The chief justice also just seemed concerned about these kind of institutional authority, institutional integrity kind of dynamics. So maybe let's play a clip from the chief justice here. Assume that the bounty is not $10,000, but a million dollars. Do you think in that case the chill on the conduct at issue here would be sufficient to allow federal court review prior to the end of the state court process? I might add this is specifically a damages action.

It is capped at much less than that. That is a significant difference. My question is what we call a hypothetical. Of course, Mr. Chief Justice. He got a little salty there, too. This is probably one of his snarkiest lines. And I think on any other day, this would have gotten him into the merchandise collection. But today, there were just too many other zingers.

And this was like, it was good, but it was not great. But it was a good zinger. I did want to note just along the lines of Justice Kagan earlier in the exchange with Solicitor General Stone pointing out how this is an extremist hypothetical. The chief justice's own question is arguably maybe this law, which provides for a minimum of $10,000 damages. And it's not clear, like, what the limit on damages is. Great point. $1 trillion. In a Dr. Evil voice.

Wow. Justice Kavanaugh also seemed to be very much in play. And I note this to Kate's point about Justice Barrett. Both Justices Kavanaugh and Barrett were in the majority in the September 1st decision, but it seemed like maybe they were waffling a little bit. And Justice Kavanaugh really kept hammering this question of state action and really mining this Shelley versus Kramer vein. So Shelley versus Kramer is the case about restrictive covenants that said that, yes, these are private agreements. And yes, in your private agreement, you can discriminate against Black people, but don't try to go to the court to get

them to enforce it, because when the court enforces it, that's a species of state action. So again, the NAACP LDF had a great amicus brief on this that targeted and talked about the white primary cases. But Justice Kavanaugh seemed very much to be interested in what exactly is required for there to be state action and isn't just the prospect of state court judges or county clerks processing these lawsuits under SB8 a species of state action that would be sufficient to give rise to a federal lawsuit. He also got into the history of Ex Parte Young and that litigation. And here, I just have to make a quick plug for an amicus brief I put together with other federal court

scholars, which pointed out how Ex Parte Young involved a dispute, much like the present one, in which a state adopted legislation that was purposefully wrapped in a scheme in order to avoid judicial review. And then Justice Sotomayor, I think, tipped her hand that she is a regular listener of this podcast because she brought up my favorite case on this issue, Cooper versus Aaron. So she specifically noted the post-Brown versus Board of Education landscape where the Southern states were really dragging their heels on desegregation. And Cooper versus Aaron was a lawsuit brought in the wake of that recalcitrance. And the court basically said, hey, you, when we interpret the 14th Amendment or any

other constitutional provision, our decisions on those points have the force of constitutional law and you have to obey them. And Justice Sotomayor was kind of like, doesn't that work here? And then she went into, again, this goes to the Jonathan Mitchell point, the question of what this means, what SB8 means for other constitutional rights. And Justice Kavanaugh also hammered on this. So again, there seemed to be some sort of unity of message, even among the justices who might have been split just two months ago. So Justice Sotomayor, Justice Kavanaugh both talked about the impact on gun rights, on religious exercise, speech. Justice Sotomayor brought up contraception and Obergefell as well. And we also had the chief asking about the Jonathan Mitchell brief to Solicitor General Stone. Again, like, you know, is this a situation where you all think you can decide what the Constitution means and we have nothing to say about it? And so all of them seem to be getting at this point that this is not just about this novel procedural issue,

but it is actually an existential crisis that raises the question of what the F is a Supreme Court for if you're not going to listen to what we have to say. Yeah. And Cooper, Shelley, we should also say the chief brought up Terry versus Adams. That's one of the white primary cases that you mentioned, Melissa. And the chief asked at least once, maybe twice about it. And I don't think it's an accident that it is, you know, these really important moments of the kind of the court at its best, right?

The court interceding to shut down state attempts to evade directives to actually provide civil rights. You know, so the court enforcing the Equal Protection Clause or finding that these kind of efforts to deputize private parties to engage in unconstitutional conduct is ineffective. So, you know, it was just, it was interesting, this kind of like greatest hits of these big, important Supreme Court opinions, substantively really important and good ones, like not an accident. I think a lot of them really judicial supremacist ones, right? So the court is concerned about the threat that a law like this

poses to it, probably much more than the threat a law like this poses to the constitutional right to abortion. But that was definitely really a theme in the argument today. Yeah. So just two kind of thoughts or questions on this. One is it is a little bit odd to see the Democratic appointees and the Republican appointees and really in a lot of ways, like more left leaning commentators united around this judicial supremacy line, given that maybe it is in the incentives for progressives, right, to be challenging judicial supremacy rather than supporting it. And, you know, we didn't talk about this on previous podcasts, but I think there has been some debates about

whether it is kind of strategic or maybe in the interests of the left in order to get this lawsuit to the court, reinforce the court's institutional authority. It's standing in the public and it's kind of nonpartisan bona fides at a time when we are expecting the courts to issue all sorts of decisions that are going to break down along partisan lines and kind of split from public opinion. And to me, this kind of raises this question that I often hear in debates about whether the court will or should overrule Roe versus Wade, which is sometimes you hear people on the left saying, like, I want them to do it, because that will provoke this backlash, you know, that will then kind of like allow us to return to, you know, this great time of civil rights. And I just think like, who are the people who are

gonna get bulldozed over, right? Who are the people whose expense that is going to be at? Who are going to be the bargaining chips in that? And to me, like that debate over like SBA and whether we should want the court to say, no, states can't pass laws nullifying constitutional rights kind of is in line with that. Like, even though I don't expect to like many or any of this court's decisions on the substance, like I still agree that people shouldn't be put to the choice of having to violate a law and be faced with ruinous liability and never being able to challenge it. And, you know, living in a regime where I get to ignore the Supreme Court's decisions,

like I just don't think that is a workable constitutional system. And then second is the point you raised about, well, what has happened since September 1st when Justice Barrett and Justice Kavanaugh declined to issue the emergency injunction? I think this is a really interesting question. I actually think Justice Barrett's concurrence in Doe's versus Mills, the main vaccination case that, you know, was a requirement to vaccinate public employees in the healthcare industry. So they wrote, they would decline to issue the emergency injunction there because if the parties could force the court to decide questions that weren't settled on the shadow docket, they could force the court's hand to

preview a merits ruling on an issue the court hadn't yet decided to grant. And I think in some ways that might be an effort to explain what could be a change in their position about the validity of these lawsuits on SB8. Two months ago, they were saying providers aren't entitled to an injunction. Now let's put them on the regular docket, right, and just decide this question once and for all and say these lawsuits can go forward. But I also think it would be a mistake to overlook all of the kind of public backlash the court has received in the last two months. And the tall world tour. Right, exactly, exactly. Like, they know they have faced a ton of heat for this. And I think it is a combination of, right, seeing this law play out, the backlash they have received, the theory that underlies it and all of its implications. And that might lead them to a change.

And I think that the fact that they do care, that they are listening, I guess obviously we're going to see where they come down. But all signs today suggested to me that there's a very good chance that they're going to move in a different direction, that at least Barrett and Kavanaugh are, than they did September 1st, and that public pushback may have a good deal to do with that. And that, I think, is also related to the point you started with, Leah, which is that sort of how progressives should react if what the court does here is to say, in know, in some way, in one or both of these cases, these cases can proceed. Texas absolutely fails on its gambit in its attempt to box out the federal courts from reviewing a law like this. That shouldn't be received in a spirit of celebration, you know, that shores up the court's institutional credibility and stature and gives it, you know,

A, cover, and B, confidence to do the biggest thing in Dobbs that it could imagine doing. So I think that a lot of that will kind of come out in commentary and public reaction to whatever the court does here. That's where I thought you might be going that, you know, if it is true that they flip on those, if Kavanaugh and Barrett flip on this, all of the commentary is going to be like so moderate, so consensus driven. It'll be just like June 2021. Yeah. And they will fail to get how the previous framing, right, is what helped change, you know, the court's posture vis-a-vis SBBA. Or even, I mean, like, again, like, the celebration, the jubilation will miss that, yes, they allowed these lawsuits to go forward,

and maybe as they go forward, substantively, they may reach a completely different outcome than the one that, you know, you might expect, given the flip. They could, although until they do something in Dobbs, like, no court that actually gets to decide the merits of the constitutionality of SBA could possibly find that it's constitutional, right? But this is the thing, Kate. I mean, so even if they take the minimalist approach in Dobbs and just like they tinker with viability and whether it's salient, then you still have this open question of like, well, does that mean for a six-week ban?

Oh, sure, post-Dobbs. I'm just saying now. Like pre-Dobbs, even a Judge O'Connor, I don't think can hold that this law is permissible under that case. No, that's fair. But my point is just sort of flipping or doing a 180 on the procedural question does not guarantee that Barrett and Kavanaugh are like in a different place. Yes. In a long-term way, absolutely. Right, right. Agree on all of that. And that's part of what makes this current regime so unsustainable, because it is not possible to maintain

this degree of public scrutiny and focus and criticism of the court over the period of Justice Barrett and Justice Kavanaugh's tenure. So we've already mentioned, just back to the argument, Justice Sotomayor and Justice Kagan kind of making sure lawyers answered each other's questions and kind of tag teaming. So we'll just play one clip of Justice Kagan that illustrates this dynamic. General, if I understand your answer to Justice Sotomayor, it was, well,

even if that's a really good question that I don't have an answer to in the other case, I do have an answer to it in this case. So some of our other justice listeners or listeners who are justices, how did fanboys, fanboys, fanboys, how did they fare? Justice Alito bringing strong Justice Alito vibes along several dimensions. So he started off his questioning by suggesting maybe Texas standing law worked to make this law not a problem because the fact that no court would have jurisdiction to hear these cases would mean the providers wouldn't be subject to suit after all. And it's like, no justice. And what was the point of the law? Right. Exactly. It's like, why is everyone too scared to perform constitutionally protected

abortions in this state? Like, what are you talking about? And then later in the argument, he seemed to at times be saying, well, this law is so unconstitutional that we don't need to worry about it because like, of course, the Texas state courts will strike you down. And it was just like, I wasn't sure where he was, but it was all over the place. And so, Leah, that was definitely a moment. I also thought that Texas Solicitor General Judd Stone had a really interesting moment, a really interesting observation about just the kind of injuries one can offer up when trying to make out a claim of standing. And so he noted here, actually, you know what, I'm going to let Judd Stone speak for himself.

So what would that injury be under SB8 if it's an injury in fact? One example could be akin to the injury suffered in the tort of outrage, where an individual becomes aware of an uncomplied abortion, and they suffer the sort of same extreme emotional harm. What exactly is the tort of outrage? And if it's sufficient to confer standing, then why hasn't this podcast been a party to many lawsuits? Because we have a lot of outrage.

Exactly. Too much outrage. Like, I would have sued Justice Alito over Brnovich. I would have sued Justice Gorsuch for basically every single opinion on textualism. I mean, if I knew— Who knew outrage was a cause of action? If I knew this was a tort. I mean, what fun we could have.

Who knew that they were intentionally inflicting emotional distress on us with their decisions over and over again. Left and right. And, you know, we're making light of this. Of course, the premise of all of this is that people can be so outraged over abortions that that would give rise. That's the injury. Yeah, that is the injury. And, of course, that is the injury. And of course that is striking, but just the notion that that would suffice.

Black people everywhere are like, we would like a word. I mean, frankly, Justice Kagan and Justice Sotomayor would have a cause of action after every single fucking oral argument in which they're continuously interrupted, right? Like they could sue Stone. They could sue their colleagues.

I mean. I can't believe he sat there with a straight face and said that. I can't believe that someone mooted him and said, yeah, let's go with court of outrage. That'll do it. And I will say, I didn't, he don't seem to get a whole lot of traction with this outrage theory, but Justice Alito had a different kind of plaintiff in mind, and he brought her up a few times in the oral argument, right? So I think there's a possibility.

He might want to write an opinion that says something like, look, SB8 has to be permissible because women have to be able to sue their abortion providers if they regret having obtained an abortion. So these women filled with abortion regret. This is the Gonzalez versus Carhartt, Kennedy, the whole abortion regret. Yeah. Right.

So there's an amicus brief that ends up being hugely consequential that is filed in Gonzalez versus Carhartt, the challenge to the federal partial birth abortion ban. And that amicus brief, I think, makes a huge difference and is, you know, shapes a lot of Justice Kennedy's opinion permitting, you know, upholding this federal law largely on the basis that many women come to regret their abortions. And in any event, that the specter of the regret, the abortion regret, um, was really present in Justice Alito's questions. He's not moved by this outrage tort theory, and he wants to make the point that there's got to be standing, right? Somebody's got to be able to pursue to enforce this law. And he's a committed feminist, right?

So he's not going to say, like, write an opinion about how prospective fathers could bring these lawsuits. Betty Fridalito. Gloria Sinem Alito. Oh, that's good. Fridalito. Sorry, Melissa. Fridalito works better. It does. It does. Well, that's good. Frito-Lito. Sorry, Melissa. Frito-Lito works better.

It does. It does. Because it sounds like Frito. Exactly. But no. No. So he did not bring because he is Frito-Lito. He did not bring up the father that – do you remember like in the Third Circuit when

he was in the Court of Appeals reviewing the Pennsylvania law that gets, you know, largely upheld in Casey, the one provision that gets struck down is one he would have upheld, which requires women to tell their spouses if they're going to obtain an abortion. So he's really concerned, right, about the interests held by a prospective father. But he he's learned enough to know. Speaking of Justice Alito, you know, if the tort of outrage were a thing, would Justice Alito be a billionaire? Right? Because, like, he is outraged all the time. So many lawsuits.

He might get sanctioned for bringing so many. Exactly. It's a frivolous lawsuit. Exactly. In addition to being concerned about the ladies in Texas who might experience abortion regret. Justice Alito also seemed to be worried about Texas. Texas is an abstract entity. I have to say, I don't think he's wrong on this. I am married to a Texan. I've had to go to Texas for a number of family events. And I think I might agree with him that Texas is really a state of mind as opposed to a state. What happened to Texas forever?

Were they just saying abstract entity forever? I mean – Well, I mean, I think that's why it's forever because it is like infinite. Texas is forever. Like it just will not stop. So maybe one or two last points on Alito. We flagged in our last episode that, you know, Mitchell, despite having toned the rhetoric down for his Supreme Court brief, you know, definitely was doing some saying the quiet part loud, which is basically suggesting that, you know, it's not actually SB8 that's chilling providers. It's Dobbs, like, looming over everything because they're, you know, they're nervous that, you know, the court is very soon going to change the constitutional law of abortion. And Alito just kind of said it, right?

So let's play that here. If some abortions have been chilled, is there any way to determine the degree to which that is the result of the potential for SBA suits from the degree to which it is attributable to the fear of liability if Roe or Casey is altered. Our boy Neil Gorsuch was also on fire today, really going at this case from several different directions. So one is he wanted to know whether if the court ruled for the providers and said they could sue the state court judges and state court clerks, whether the court would be required to overrule ex parte young. And it's like, who likes stare decisis now, Neil? Stare decisis is for suckers. You told us that.

Yeah. And also this question is just in such bad faith, given that as a 10th Circuit judge, he has criticized Ex parte Young, saying it adds to the Rococo quality of 11th Amendment jurisprudence and just, you know, I know. I love, what is the Rococo quality as opposed to the Baroque quality or the impressionistic quality? I love it. It's just a little bit too much, by which I mean a lot too much for me.

So he also, you know, tries to go through these hypotheticals that we touched on in our preview, trying to point out circumstances where you can't actually challenge laws or policies that show the exercise of constitutionally protected liberties. But some of the examples he cited actually did involve pre-enforcement challenges. So for example, rules during the pandemic about the exercise of religion, those were pre-enforcement challenges. Those laws were not designed to evade judicial review, so I don't know what you're getting at. And then I alluded to this previously, he could not help himself from interrupting Solicitor General Prelogger. The constant stream of interruptions went on for

three or four pages, so we can't play them all. But he keeps saying, just answer my question, just answer my question, as she is answering his questions. And it was extremely off-putting. She had one great answer that I just want to play now. Are you aware of any other example of such an injunction? With that specific term? I can't cite one to you. Not in the history of the United States. You can't identify one for us, right? In the history of the United States, no state has done what Texas has done here. Her answer is so great because, you know, I think most people understand that the way to answer that question is like, well, the Texas law is unprecedented too, but to be able to use

the justice's own words in her formulation of the answer on the spot, I mean, it's just so well done, extremely gifted without seeming argumentative or condescending either. She had a great maiden voyage as Solicitor General. And I mean, like, we just should really underscore, she was confirmed Thursday. It's just nuts. All right, so should we talk about whether there were hints from the justices about Roe and Casey? I think Justice Alito was serving a hint. Well, right. With the suggestion that it's really the fact of Dobbs looming that is killing providers. And he's like, you know, correctly so. So yeah, that's, I think we don't really

need to do some parsing. Wait until you see what I've got up my sleeve there. They should be scared. Okay, we don't need to really talk about him anymore. Okay, what about... Look at you invoking the Justice Elena Kagan. Next. No questions for you. Boy, bye.

None for Gretchen Wiener. Leah, can I ask you, what's going on with your boy, Steve Breyer? I mean, he's asking unhelpful questions that were so confused slash confusing. They seem to convey skepticism about some of the theories from the providers in the United States. And, like, I don't think he's going to try to show his nonpartisan bona fides in this case by voting with Justices Thomas, Alito, and Gorsuch. But it's like, what questions were you asking, Steve? So at one point, he's asking whether the prospect of 4 billion tort cases,

which is like the volume of tort cases in the United States, allows people to sue judges. At other points, his questions are just so confused and confusing that both Justice Sotomayor and Justice Kagan have to step in to clean them up and basically rephrase them into intelligible questions. So at one point, Justice Breyer invokes, you know, what is a very important history, you know, the history, Melissa, you noted Justice Sotomayor spoke about, you know, the massive resistance to Brown and Cooper. Only Justice Breyer's attempt at getting at this history took like over a page and it wasn't always clear what he was referring to. So let's play that clip here.

Let me think about just a specific example, which was the worst one I could think of for it. I mean, suppose that Governor Faubus had this model law and said, anyone who brings a black child to a white school is subject to. And then we copy the law. There we are. Now, if you were in that situation, which I'm sure you're glad you're not, what? What would you do?

I mean, if we uphold this, are we retroactively upholding that? And then Justice Sotomayor has to step in to explain the many examples where Congress actually didn't provide a remedy for plaintiffs whose constitutional rights were being violated. Can I give you examples where Congress has it? A state dissatisfied with Heller says anyone who possesses a firearm anywhere is subject to litigation by any private citizen anywhere in the country and gets a million dollar bounty. No stare decisis, no nothing. How about in Obergefell imposes SBA style liability

on anyone who officiates, aids, or abets a same sex wedding? How about dissatisfied with Lawrence versus Texas? Subjects a private consensual sexual conduct of which it disapproved to the exact same law as SBA 8. How about Griswold? The use and sale of contraception is subject to SBA-style liability. So this is not limited to abortion.

That's the point that's been raised. It's limited to any law that a state thinks it's dissatisfied with. Another point, Justice Breyer asked a question about Ex Parte Young and Texas's efforts to evade it. And Justice Kagan has to follow up with, you know, General Stone. I think what Justice Breyer is suggesting is that the entire point of this law, its purpose and effect is to find the chink in the arm of Ex Parte Young. And again, like it just took them doing extra work in order to get his questions across.

Then we said in the last episode that we basically wanted him to just like cede his time to Kagan. This is not what we meant. This is not at all what we had in mind. No. So one question that came up at argument is whether judges were ever proper defendants in ex parte young lawsuits. And as we noted in the last episode in the mind run of cases, they're probably not when they're just like passively enforcing a law. But here the justices noted that this law is structured as to basically make the courts kind of a weapon, you know, allowing the plaintiffs in these lawsuits a bounty, not allowing fees and costs to defendants, even when lawsuits are frivolous, so on and so forth. And there's a really helpful amicus brief on this point by John Michaels, Diego Zambrano, and David Knoll that outlines all of this. One amusing question from the chief justice about the scope of this injunction that we'll just play here.

That's part of the relief you seek, isn't it? People, anybody can bring one of these suits, so you're seeking an injunction against the world, right? Something we've alluded to but maybe haven't said explicitly, and we really should, which is that Solicitor General Prologuer was just fantastic in her maiden voyage. Like, one thing to highlight was this kind of masterful use of the passive voice on her rebuttal, right? So she says, the law had been permitted to take effect without pointing the finger at any particular body or set of individuals who might have been responsible for permitting the law to take effect. So that was a great moment. But throughout, she was fantastic.

And you know what's going well when Justice Alito basically gives up questioning her and at some point has to start asking questions about, well, assume, right, that the district court is right to enjoin parts of this law. Surely you can keep some other parts on the book and like sever the applications from it. So yeah, she did great. How do you think this is going to turn out? What are your predictions? And what's the timing of this? You know, I have no idea on the timing. I think I went in thinking the United States lawsuit was more likely to be allowed to proceed. I think now the provider's lawsuit is more likely to proceed. Kagan seemed to be brokering some kind of compromise in the colloquy with her colleagues about, you know,

maybe, like, let's tip off the United States versus Texas if we can just, like, reach some agreement about ex parte Young and the judges. Like, that seems like the more plausible vehicle. Or just the clerks, right? Just defer the question from the judges altogether, potentially, and say, proceed against the clerks. That seemed possible.

I just thought Prologue was so good at the limiting principles. Like, why would they not let the United States go here? Like, except that just like it's, you know, maybe it's easier. I don't know. Could they? I think they're really worried about the prospect of the Democratic DOJ just doing whatever they want to. But she explained so beautifully why that was like, this was such a unique set of circumstances. Like they could write a super narrow opinion that says, you know, we're not answering anything more broadly about the federal government's ability to proceed here, but here they can

come. I don't know. So, you know, maybe it's not necessarily a blue state, red state, Democratic administration run, but just like generally the idea of the United States and the Department of Justice being able to sort of just intervene and stick it to states whenever they don't like what the states are doing. And I think part of why it might be that allowing the provider's lawsuit to proceed means they don't do so for the United States is that the United States theory was the United States has standing

and can pursue these cases when a state has structured its law so as to prevent individual right holders from challenging it. And if that isn't the case, if the court says- Then there's no need. Right. Then there's no need. But one important question is how quickly the court will act. That is, let's say the court says the provider's lawsuit can go forward. The court doesn't have before it pending a motion for emergency relief. So the case would, I guess, go back down to the district court and the district court would need to issue some form of relief. And so some prospect of relief is still in

the future. Yeah, but the plaintiff's lawyer made clear that if they do get back down, they're going to immediately, you know, submit such a request. And presumably it gets granted quickly and the thing gets litigated against the backdrop of the law being on hold as opposed to in effect, which is where we are now. I think it could happen fast. I think it could be a matter of weeks, honestly. I don't know before Dobbs or not, which is December 1, but that seems to me in the realm of the possible. Stay tuned. Watch this space. As always, we are grateful to Melody Rowell, our producer, for doing another very quick turnaround episode. And we're grateful to all of you who support the show and have all of this appetite for us making additional episodes. We appreciate you. And if you would like to ensure

that we're able to provide the optimal amount of coverage as we have done in these moments, you can help us out by signing up to support the show at glow.fm forward slash strict scrutiny. You can also buy any of our awesome strict scrutiny merchandise at www.strictscrutinypodcast.com. And that includes the newly released Kagan capsule slash tag team capsule collection, which features some of the great merchandise mentioned tonight. As always, thank you to Eddie Cooper for making our music. And thanks to all of you for listening.