Strict Scrutiny - Spaceships and Serial Killers

Episode Date: March 29, 2021

Melissa and special guest Ginger Anders recap the first week of the March sitting and preview the second week of the March sitting. 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. Welcome back. This is Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Melissa Murray, and I'm your host for today's show. And although I am all alone without Leah and Kate, I am joined by a very special guest. Ginger Anders is a

partner in the Washington, D.C. office of Munger, Tolles, and Olson. She's an experienced appellate litigator, having argued 18 cases before the U.S. Supreme Court. She joined Munger from the Department of Justice, where she served as an assistant to the U.S. Solicitor General and a Deputy Assistant Attorney General in the Office of Legal Counsel. During her nearly eight-year tenure in the Solicitor General's office, she represented the United States in some of the most significant patent cases decided by the U.S. Supreme Court in recent years, including Teva Pharmaceuticals v. Sandoz and Comil v. Cisco Systems. In addition to her work in patent law and IP, she wrote the government's briefs in Fisher v. University of Texas at Austin, Zivotofsky v. Carey, Bank Markazi v. Peterson, and American Express v. Italian

Colors Restaurant. She's a graduate of Yale College and Columbia Law School, where she was an articles editor for the Columbia Law Review. And following law school, she did the trifecta of clerkships, clerking first for Judge Gerard Lynch, then of the Southern District of New York, Judge Sonia Sotomayor, then of the Second Circuit, and then finally at the show for Justice Ruth Bader Ginsburg. I will note that after having Ginger serving in their chambers, Judge Lynch was elevated to the Second Circuit, and Judge Sotomayor became Justice Sotomayor, and Justice Ginsburg became the notorious RBG. So basically, this is all to say that Ginger Anders can help everyone level up. And that's why she's here on Struck Scrutiny today, helping us

bring our best A-game. So welcome to the podcast, Ginger. Thank you so much. It's so great to be here. Great to see you. Speaking of seeing us, I did not note, because this seems irrelevant given the other people that you've helped to level up their game, but you certainly helped level up mine when we were co-clerks together with Justice, or then Judge, now Justice Sotomayor. So it's really great to see you. I'm glad that you're here on the show today. So tell us a little bit about what you've been doing in quarantine.

What have I been doing in quarantine? Well, I've been lucky to have the legal work sort of continue, right? It's easy enough to do from home. And I've been in a cabin in Virginia Woods, actually, you know, just working on the cases that we had from before the quarantine, I guess. So it's been interesting. It's definitely been an interesting time. I'm glad to hear that you all are in good health and that, well, Ginger, you are the mother of many dogs. And so your dog mothering has definitely continued in quarantine.

So you have how many dogs now? We have two beagles, both of whom are very happy to have us at home and to be sort of mostly out in Virginia where they chase squirrels and possums and whatever else comes across their vision. So I'm asking for a friend, but what do you do to keep your dog from barking in the middle of Zoom calls or podcast recordings? Bribery might work, you know, like delicious bones that take them a while to chew. Like the bones of my children. Well, that works. Whatever it takes. delicious bones that take them a while to chew. Like the bones of my children. Well, that works. Whatever it takes. I'm not going to do that. Don't worry. But yes, I am trying to figure out how to keep this dog from crying during this podcast. He hears your voice, Ginger, and he

knows that you're his dog mother and he wants to see you and he's just crying. He's so cute. He's very cute, but not when he cries. In any event, Ginger, we have an action-packed show today for our listeners. As always, we will begin with breaking news, and then we are going to recap the March 22nd week of oral arguments. There were a lot of oral arguments that took place over the course of this week, so lots to cover. And then we'll do a brief preview of next week's oral argument, and then we will finish up with some

court culture. So first, breaking news. So Ginger, this is actually something that is, I think, relevant to having you on the show. And I know that you are working on this case, so you can't comment on it. But on Monday, March 22nd, the court announced that it will review the First Circuit's decision throwing out the death sentence of Dozar Tsarnaev, who was convicted of helping carry out the 2013 Boston Marathon bombings. Last year, a three-judge panel of the First Circuit upheld Tsarnaev's convictions on 27 counts, but concluded that Tsarnaev's death sentence should be overturned because the trial judge had not questioned jurors closely enough about their exposure to pretrial publicity and had excluded evidence concerning Tamerlan Tsarnaev, Zocar's older brother and accomplice. Writing for the panel,

Judge O. Rosary Thompson noted that Zocar will remain confined to prison for the rest of his life with the only question remaining being whether the government will end his life by executing him. So again, this is a really interesting case and perhaps one that speaks to the court's recent appetite for death penalty cases. Also on Monday, Congress conducted hearings on D.C. statehood, which has been increasingly a topic of conversation. So Ginger, what say you? You've been a longtime resident of the district. Do you feel that you are being unrepresented but taxed nonetheless? That's what our license plates say. Yeah, I mean, it would be great to have representation, you know, in Congress, right?

Voting representation in Congress, which we don't right now. And that's something I think we do feel, you know, and especially the events of this past summer, right? You really, it really brought home how we're not a state especially the events of this past summer, right? You really, it really brought home how we're not a state and it really can make a difference, right? The National Guard control, for instance, right, was under President Trump rather than under the governor of our state, you know, of D.C. And so, yeah, I mean, I think it would be great to have D.C. statehood. Well, there are many who are sounding similar themes. So those in favor of granting statehood to the district have argued that D.C. has a larger population than two existing states, Wyoming and Vermont, and both of those states enjoy

representation in Congress. They've also noted that D.C. residents pay more federal taxes per capita than any state and more total federal taxes than 21 states, but still have no voting representation in Congress. Some have suggested that resistance to D.C. statehood is rooted in the fact that D.C. residents lean Democratic and could be a very significant voting bloc for the Democratic Party, and also the fact that there is a large population of African Americans in the district who may also lean Democrat and be a voting bloc in their own right. You're scoffing, Ginger. Do you think that's it? That certainly seems like it's probably part of it based on some of the rationales. D.C. doesn't have an auto dealer. It would be the only

state without an auto dealer. It was something that one of the congresspeople said. So Ginger is referring to the hearing itself where those opposed to D.C. statehood have sounded some originalist and textualist themes, namely that the Constitution explicitly outlined D.C. as a federal district rather than a state. But they've also made more novel arguments, including practical concerns like D.C., as Ginger says, does not have its own auto dealership, which apparently is a pivotal indicia of statehood these days. Zach Smith of the Heritage Foundation in arguing against statehood made an even more novel argument. So let's have a listen. Framers also wanted to avoid one state having undue

influence over the federal government. There's no question that D.C. residents already impact the national debate. For the members here today, how many of you saw D.C. statehood yard signs or bumper stickers or banners on your way to this hearing today? I certainly did. Where else in the nation could such simple actions reach so many members of Congress? So what do you make of this, Ginger? D.C. statehood is unnecessary because D.C. residents can always lobby in their favor with Congresspersons by simply putting out a sign in the yard. That seems like a pretty thin rationale to me. I mean, you could say that of residents of any state, right? I mean, we fought a revolution over this. It's not the

same thing as being able to express your views. It's not the same thing as being able to nonetheless, we had Zach Smith talking about the possibility of getting your voice in Congress heard through the use of yard signs. So anyway, moving on. In other news, Americans have no right to carry guns in public, or so said a divided en banc Ninth Circuit panel on Wednesday, which reversed a prior Ninth Circuit decision that struck down a Hawaii firearm restriction as unconstitutional. There is no right to carry arms openly in public, nor is any such right within the scope of the Second Amendment. So said U.S. Circuit Judge Jay Bybee, noted progressive and gun control enthusiast. Just kidding. He is not, to my knowledge, a gun control enthusiast. But this was a very significant

opinion. And I'm fairly certain, and I don't know if you disagree, Ginger, that this is definitely on its way to the court. Certainly, I think that, you know, gun rights advocates would try to take this to the court. I think, so I used to handle part of this docket when I was in the government. And so, you know, we did see sort of a constant stream of these petitions for cert coming up, trying to broaden Second Amendment rights. But, you know, it's interesting. I mean, it seems like this decision kind of fits within the pattern that I saw then a few years ago, which was that there didn't seem to be any appetite for broadening Second Amendment rights beyond what Heller had already said, and that sort of core right to possess within the home. And, you know, we saw actually many petitions that came up, you know, during that time that we thought were plausible grants, and the court just never took

them. And it just seemed like they weren't interested in getting involved in sort of the finer-tuned debate about, you know, this right or that right. So do you think it's different with the composition of the court changing? Like, maybe there is more of an appetite now that they have a 6-3 super majority of conservatives? It could be. I mean, it's a little bit hard to know where someone like Justice Kavanaugh is, or at least I personally don't know where he is. I'm not sure that he saw a lot of this as a D.C. Circuit judge. So I think it may depend. But certainly, obviously, the court has moved to the right and you no longer have the chief justice as sort of a fifth vote for moderation or for institutional caution. So stay tuned. We will hear more. In other Department of Justice news, New York Senator

Chuck Schumer has recommended three individuals to lead the U.S. Attorney's offices in the Southern, Eastern, and Western districts of New York. The three are Damian Williams to lead the SDNY, Breon Peace to head the EDNY, and Trini Ross to head the Western District of New York. And they are all African-American. And that would be the first time that there would be three black leaders filling those critical positions. And the first time that an African American has headed the Southern District of New York. So all of those are really interesting

picks. And we will see more as they go on toward confirmation, selection by the president and then confirmation. But obviously, Chuck Schumer's say-so here is pivotally important. On Thursday morning, we got some really interesting news from the court. Just in time for us to head into the studio, the court dropped some opinions in some really important cases. The first opinion was in Ford v. Montana, which was an 8-0 decision. Justice Barrett did not participate in the decision-making process or in hearing this case, but it was a majority decision written by Justice Kagan. And this was that personal jurisdiction case that we had earlier previewed here on strict scrutiny. And

the TLDR is that the court clarified the limits of specific personal jurisdiction and plaintiff's due process rights, holding that there were enough connections between the plaintiff's claims here and Ford's business activities within the state of Montana to be sued in Montana. And the decision rejected the Ford company's proposed proximate cost standard for establishing specific personal jurisdiction and product liability and negligence cases. So on the whole, it was a victory, I think, for consumers and certainly for Deepak Gupta, who argued on behalf of the plaintiffs. But there were some notable concurrences here from justices Alito and Gorsuch, which seemed to suggest that they were somewhat skeptical of international shoe, which, as law students know, was a stalwart

of the personal jurisdiction canon. This is also a notable case, not just because of the 8-0 lineup, even with the concurrences, but it's the first case from the court civil procedure docket that's been decided without the benefit of the court's civil procedure guru, Justice Ginsburg, for whom you clerked, Ginger. So what would she have made of this particular outcome? I think she probably would have been on board with the majority. She was somebody who was incredibly precise about civil procedure, but also pragmatic at the same time. And shot through Justice Kagan's opinion is just the idea that as a matter of common sense, right? Ford is selling cars in Montana, which is the state that was involved. It's encouraging people to drive their cars in Montana. And then so to turn around and

say that, you know, as against a product's liability suit based on an accident in Montana, that there wouldn't be jurisdiction, you know, I think that was a little bit hard for many of the justices to swallow just as a practical matter, right? So yeah, I think that was a little bit hard for many of the justices to swallow just as a practical matter. So, yeah, I think that was a large part of the motivation. It definitely was an opinion, I think, rooted in just sort of the practicalities and also the difficulties that consumers would have in raising claims if they were more limited in terms of personal jurisdiction and where these claims could be brought and what the connections would look like with the business activities of the defendants. Another opinion was also issued this morning. This was a 5-3 decision in Torres v. Madrid in which the court held that an officer's failed attempt to detain a suspect by shooting her in the back is a seizure for purposes of the Fourth Amendment. The Chief Justice, who wrote the majority opinion in which he was joined by Justices Breyer, Sotomayor, Kagan, and Kavanaugh, observed that the officer's shooting applied physical force to the suspect's body and objectively manifested an intent to restrain her from driving away. We therefore conclude that the officer seized

Torres for the instant that the bullets struck her. There was a vigorous dissent from Justice Gorsuch in which he was joined by Justices Thomas and Alito, where he chided the majority for adopting what he termed a schizophrenic interpretation of the term seizure. And he noted that the court's reliance on common law history was misguided in this particular case, and the court was going down the wrong avenue. What did you think of this one, Ginger? This was a really important Fourth Amendment case. Absolutely. And I think I was happy to see that it came out the way it did. I should say I filed an amicus for defund on the petitioner's side here. You know, I think what

made this case really interesting is that if you just think about the intuitive understanding of a seizure, like I seized the car or I seized the contraband, you think I must have to have possession of that thing once I seize it. And so the idea that what happened here, you know, they shot the suspect, she kept running. So I guess in some intuitive sense, it doesn't seem like a seizure. But, you know, of course, the consequence of ruling the other way would have been that, you know, shooting someone to try to get them to stop is not a seizure and therefore the Fourth Amendment doesn't apply at all. And so there's just no constitutional supervision, right? There's absolutely nothing you can do. Right, right, exactly. And so that was a very disturbing consequence and, you know, one that would have been, I think, really pretty cataclysmic if they'd gone that way. What did you make of this lineup with the chief joining the liberals and Justice Kavanaugh? Yeah, I think it does seem like on some of the criminal justice issues, he has been somebody who might be sort of in the middle of the court, you know, as opposed to just, you know, Gorsuch, Thomas and Alito tend to be much more, you know, not on all issues, but on many issues, you know, government friendly. And so, you know,

I think the lineup is one that's not too surprising. Well, so one of the things we've talked about on this podcast before, and Leah has really sounded this theme, but after decisions like Ramos, for example, last year, there were a number of people who seemed to be of the view that Justice Gorsuch was sort of incredibly woke on criminal justice issues. You laugh. So did Leah. This, I think, suggests that he is perhaps more of a traditionalist, you know, more in tune with the government than perhaps that single decision Ramos would suggest. And maybe this is more in keeping with his general sensibilities around criminal justice and criminal procedure issues. Yeah, I think that could be right. I mean, he certainly in Fourth Amendment cases involving property, right, so trespass rights, property

rights, as we'll see, you know, talking about some of the cases we're going to talk about. He's very, very skeptical of government intrusion, right? But this is sort of in a different category of government action. It doesn't involve those sorts of property rights. So he may have a somewhat different view. The limits of libertarianism. That's a good segue for what comes next. So let's switch gears and talk a little bit about oral argument this week. It was a pretty light sitting for the court. They basically heard one case a day for about an hour. But the cases, I think, were really chock full of really important issues, lots of discussion of common law antecedents and analogs. And not really sure that we actually got a clear sense of where the court would come out.

But there seemed to be, in all of these cases, a real interest in kind of finding a middle ground between two positions. So the first case, which was heard on Monday, is Cedar Point Nursery v. Hasid. And this is a case that we have previously previewed for you listeners. This one involves a decades-old California regulation that grants union organizers temporary access to an agricultural employer's property during non-working hours

for the purpose of communicating with workers about their right to organize. Two California fruit producers have challenged this right of access on the ground that it amounts to an uncompensated taking of their property in violation of the Fifth Amendment. And so the question for the court is whether this uncompensated appropriation of an easement that is limited in time affects a per se physical taking under the Fifth Amendment. And Monday's oral argument was incredibly lively with the justices very preoccupied with the question of how to distinguish between a constitutional condition on market participation and an unconstitutional regulatory taking. So what stood out for you,

Ginger, about this oral argument? I think one thing that stood out for me was just the difficulty that the court is going to have in writing an opinion that sort of, you know, as you say, sort of comes in between the two extremes. I mean, I think this is a case in which, both sides had line drawing problems, I think. You know, certainly on the petitioner side, you know, the idea that any kind of, you know, any kind of government rule that says there are times when the government or some private party can come into your property for some government interest, the idea that that would always be a per se taking requiring compensation, you know, there are some pretty striking consequences from the government's perspective, right? Because there are any number of administrative, you know, some sort of, you know, government right to come in, no matter how briefly. I think that is pretty staggering. And so I think the court was looking to try to avoid that result. Well, that seemed to be what Justice Breyer was especially preoccupied. So he kind of came in hot with this whole question of an entire inspection regime that was sort of off bounds if this actually was a regulatory taking.

So let's hear a little bit from him from oral argument. If you think it's always excessive, there are dozens and dozens and dozens of statutes which provide, for example, one brief tells us the Mine Safety and Health Act of 1977 allows the Secretary of Labor to inspect a coal mine at least four times a year. And I guess that they could have, say, some kind of, they might delegate that authority to private inspectors. I don't know. But are all those long lists of statutes, are they all unconstitutional? He also, I think, not only highlighted the prospect of a slippery slope that might call into question a range of administrative regulatory schemes that occur at both the federal and state levels. He also displayed his particular penchant for inventive hypotheticals.

So let's go back to Justice Breyer, who interposed the common law with the prospect of extraterrestrial life. That's pretty right. Common law. I see. It's common law. Okay. Well, you know what they have? It's really surprising. I don't mean to sound facetious or sarcastic, but I was trying to think of an example. And people now have in 15 years their own private spaceships or their own electric cars or their own driverless cars.

And there's a law that says people can go in, the inspectors, the gas station. If you keep your car without using it inside your property for 10 years, they want to go inspect it. They have to do that because it might blow up. They had no spaceships at common law. I'm just trying to think of an example where it's the same idea. It's just they didn't have it at common law. What did you make of this, Ginger? Like, I did not have spaceship on my oral argument bingo card for Monday. I think Justice Breyer always brings, you know, a really unique sort of whimsy to oral argument. I mean, sometimes, you know, you just want a little levity. And he definitely brings it. So he was very much of this view that we've got to be concerned about

the slippery slope and suddenly we just don't have regulation at all. Then there were some others. I thought Justice Barrett actually raised an interesting point. So what if this is a regulatory taking? If it is, the point is then to compensate the employer for the use of the property during this limited period of time. And so and then she posed the question, how much is it worth? And she suggested 50 bucks. What did you make of that line of argument? Yeah, I mean, I think it probably understates the consequences for the government if the petitioner's regime were to be adopted. I mean, I think probably the real problem for the government would be that anytime a legislature wants to, you know, enact a rule like this, there will be, you know, all kinds of political pressure because it will off the bat be understood

as a taking. And then you'll have all sorts of litigation. The floodgates are really open, right, about what exactly is just compensation. You know, maybe it is only $50 and maybe a lot of these cases could be settled because the amounts are so small, but, you know, that won't always be the case. And so you're just upping the cost of regulation, right? I mean, it's kind of like a lot of the court's recent administrative state cases, too. You're just raising the cost of regulating and just adding friction to the regulatory state. And California raised that repeatedly.

California's whole point here is that this should not, under the standard articulated by the court in Penn Central, be considered a per se taking. So there should be no sort of categorical rule, which is what the petitioner was arguing for. There should be no categorical rule that this is a per se taking, but rather the ad hoc inquiry should be followed. And that's just a more context dependent, a more sort of sensitive, specific to the circumstances kind of inquiry. But Justice Kavanaugh, again, seemed to want to go away from the whole question of ad hoc versus categorical and instead find a way to kind of meet in the middle and acknowledge the impact of these kinds of regulations on employers while also acknowledging the government's

interest in regulating. And he suggested the possibility of using an older NLRA case, Babcock, as a guide. And in Babcock, the question is whether or not rights of access can be available to organizers, but not necessarily farm worker organizers. It's important to note, and Jenny Hunter of SEIU noted this on Twitter, Babcock, although it is an LRA case, is not necessarily relevant to these particular factual circumstances because the NLRA, due to a compromise with Southern senators, doesn't actually include farm workers within its ambit. So it doesn't actually relate to organizers who are trying to organize agricultural workers. But did you think

that Justice Kavanaugh was on to something here, like that Babcock could perhaps be a way forward to kind of wed these two very opposed interests? It could be. I mean, it certainly would be a narrow ruling that would apply really, you know, only to this statute. And, you know, sometimes the court does seek an out like that when it realizes after briefing an argument, right, that it's got two positions, both of them are very difficult to limit. And it's hard to know how to write an opinion while being certain of all the implications of the opinion. And, you know, one thing I think may have made this perspective even more attractive to Justice Kavanaugh is that there are almost no statutes like the one at issue in California, a statute that gives the right to union organizers to come onto agricultural property to talk to workers.

I didn't see any analog statutes in any of the briefing. Nothing was mentioned at arguments. I don't think there's anything really like this that's out there that's comparable. And so that means that if you were to rule on this ground, it would be a pretty narrow ruling. So maybe that is a way out of it. It is worth noting that this very same California law that's being challenged here in Cedar Point was also challenged at the California Supreme Court in the 1970s. And there, the California Supreme Court upheld the law and the Supreme Court denied certiorari. So, you know, there's, I think, a whole nother dimension to this, which sort of speaks to

the institutional dynamics of the court that 30 years later, the court is taking up again. And that perhaps might speak to just the ideological tilt of the court that 30 years later, the court is taking up again. And that perhaps might speak to just the ideological tilt of the court, but also its increasing skepticism of labor rights. So more to come. Really interesting oral argument with lots of just really fantastic hypotheticals from Justice Breyer, who outdid himself in this one. Well played, sir. Moving on to Tuesday, Ginger, this was another really important case dealing with criminal procedure, but with the added twist of criminal procedure and cross-enforcement in Indian countries. So United States v. Cooley concerns a Ninth Circuit ruling that found that a former highway safety officer, James Saylor, of the Crow tribe of Montana, lacked the authority to temporarily detain and search Joshua Cooley,

who is a non-Indian who was subsequently arrested by county law enforcement and indicted on drug trafficking and firearms charges. The question in this case is whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacks the authority to temporarily detain and search a respondent who is a non-tribe member on a public right-of-way within the reservation based on the potential violation of state or federal law. This oral argument, Ginger, was a battle of the Eric. So no women participated here, but two men named Eric argued on either side of this case. And this was another one in which the court seemed very preoccupied with the practicalities of what it means to enforce the criminal law of either the state or federal government or the tribe within Indian country. So what were your thoughts about this oral argument? Sure. So this is another one where the court was really concerned about the limits of each position and the consequences. From my perspective, I thought that the Ninth Circuit's rule was

quite striking because essentially it was that when a police officer makes a stop on Indian country, he first has to decide whether he thinks that the person in the car is is an Indian or not, which is kind of like racial profiling, really. Right. Because it's either it's either based on his perception of their appearance or it's based on, as I think, you know, Eric Fagan for the government pointed out quite effectively at argument. You can ask them, but they don't have to tell you the truth. Right. And so so first, the officer has to make that determination. And then if the person turns out to be a non-Indian, the officer can proceed to investigate only if there's obvious evidence of, I guess,

apparent and obvious crime. So so the sort of obvious, like immediate evidence of a crime, which almost never will be satisfied. Well, Justice Thomas had one very interesting hypothetical that I think may test the limits of what is an immediate crime in process. So let's hear a little bit from Justice Thomas. I'd like to continue along that line, counsel. Let's change the facts in this case just a bit so that rather than the police officer determining that the respondent was nervous and that he had bloodshot eyes, rather he fit the description of a serial killer, that the police officer alerted to, a serial killer who did not commit any of the crimes on the reservation, but happened to be exactly where a respondent was.

How would you, would you make the exact same argument in that case? So what do you think about this serial killer exception that Justice Thomas is carving out here? Is the prospect of a serial killer on the loose enough to make this an exigent circumstance that would warrant even detaining someone who is not subject to tribal authority? I think that's the question. And so, you know, part of the problem here is that the Ninth Circuit standard, you know, apparent and obvious crime is so new. And so it's not really familiar to us. And so it's a little bit hard to know how it would apply. I mean, I guess my intuition is that the officer certainly would have probable cause to think that maybe this

person is a serial killer and therefore they have committed these other crimes. But I'm not sure that that counts as an apparent and obvious crime. Just seeing somebody and thinking that they look like a serial killer, they match the description that that actually would rise to the level of the Ninth Circuit standard. So I think that is one of the difficulties here for Mr. Cooley that you can imagine situations in which you would probably want law enforcement to be able to investigate. And it's not clear that they would be able to under the Ninth Circuit's rule. And that was a hard line, I think, for his attorney, Eric Henkel, to draw. On the other side, though, Deputy Solicitor General Eric Fagan made an argument that the tribes had not divested

themselves of what he called the core inherent authority as sovereigns to investigate and detain suspects within their borders for violation of another sovereign's law, which was an interesting move and one that I think Justices Kagan and Sotomayor immediately picked up on. Why the appeal to this question of inherent tribal sovereignty or authority, as opposed to trying to fit this case into the framework of the court's 1981 decision in Montana versus U.S., which limited tribes authority over non-members on tribal lands, but allowed for certain exceptions? Like, why wouldn't this just be easier to fit into Montana as an exception? I guess it could be a couple of things. I mean, you know, there may have been some doubt on the government's part about whether this sort of investigative authority would rise to the level of something that would threaten the tribe. So it would satisfy the Montana exception. And the United States often has an interest in protecting the and recognizing the sovereignty of tribes. And throughout the government's brief, they make the point that they entered into treaties with tribes that presuppose this authority, this authority to investigate non-Indians and then hand them over, hand over suspects to state or federal authorities. And so you could imagine that the government wanted to protect,

on the other side, the tribe's authority to enter into those treaties. Thinking about the sort of the broader scope of U.S. tribal relations, this particular case comes on the heels of a very surprising decision last term in McGirt. How does McGirt shadow, you think, the court's disposition of this case? And specifically, where do you think Justice Gorsuch, who is perhaps the member of the court that is most deeply steeped in the vagaries of federal Indian law and indeed what it means to live in Indian country? Yeah, that's a good question. I mean, I think those sorts of realities can make somebody very cognizant of the fact that, you know, these are vast swaths of land that we're talking about.

And, you know, the question whether the tribe has authority to investigate what appears to be criminal activity within its borders, within the borders of Indian country can have, you know, significant consequences for the people who live there, right? And so just as a practical matter, it does seem to me that there's a lot of intuitive appeal to the government's position that, you know, this would apply. What they say is that, you know, the concerns here would apply not only on public throughways like highways, but also to land owned within Indian

country by non-Indians. So, you know, would you be able to, you know, investigate if you think that there's a crime being committed, you know, on somebody's property, non-Indian's property? You know, those are questions that would have pretty severe consequences for tribal members. And it's already noted that non-Indians committing crimes in Indian country is already seriously under-enforced and under-policed, and that a number of tribes have noted this. I mean, there's just a lot going on in this case. Another law professor who does criminal procedure mentioned to me that one of the things that he thinks is particularly interesting here is that it's actually a very big question about cross enforcement, like whether particular sovereigns can enforce another sovereign's criminal laws. And he wondered if this was

going to be the vehicle for the court to flesh that out, given that it's not squarely a Fourth Amendment case, but rather a question of the Fourth Amendment being filtered or incorporated through the Indian Civil Rights Act. And maybe the court would balk at using this particular case as a vehicle for saying something more profound or impactful about the question of cross enforcement. What do you think? I think that's probably right for that reason. And also, I think, you know, you had some justices like Justice Sotomayor questioning, you know, whether we should really be viewing this through a Fourth Amendment or, you know,

Fourth Amendment like lens at all, because if you're going to analogize, you know, whether we should really be viewing this through a Fourth Amendment or, you know, Fourth Amendment-like lens at all, because if you're going to analogize, you know, a tribal policeman who doesn't have investigative authority to a private citizen, then you wouldn't assume that he was subject to the Fourth Amendment at all. So yeah, I think there are a lot of sort of complexities there that would prevent the court from saying anything that would have broader implications for the Fourth Amendment generally. So let's pivot from Indian country to Rhode Island and yet another Fourth Amendment case. This one comes from Cornelia versus Strom. And the question here is whether the community caretaking exception, which is an exception to the Fourth Amendment requirement that a warrant is required for a search or seizure of private property, whether that caretaking exception to the Fourth Amendment should be extended from vehicular searches, which is where it's typically

been used, to the home itself, which traditionally has been a place that has been sequestered from government intrusion. So in Kenelia, the issue there was, we talked about this before in an earlier episode, this was a gentleman, he and his wife were engaged in a domestic disturbance. The wife left the home. She later called her husband because she was worried that he was perhaps suicidal.

She called the next morning, didn't get word from him. And so she sent the police over for a wellness check. When they arrived, they found him. He was fine. They determined, though, that he should be hospitalized. After they dispatched him to the hospital, they entered the home and seized a gun and some weapons and some ammunition. And so the question is whether that's within that community caretaking exception to the Fourth Amendment. The First Circuit had concluded that it was. What did you make of this oral argument, Ginger? You know, this has interesting cross currents with Cedar Point, with the Takings case, right? The idea of, you know, when, if ever, can the government can't

come in to your property and when do we want them to come in? And you saw a real division among the justices and their views of whether, you know, those kinds of intrusions are generally benign and, you know, something that can be helpful to the occupant, the resident, or, you know, something that is to be feared, really, right? So you had Justice Kavanaugh, for instance, and Chief Justice Roberts saying, you know, we have an elderly person who's fallen. A lot of discussion of elderly people falling. Yes, and how often it happens.

Justice Kavanaugh said several times that the statistics on this are quite staggering. And he sounded really exercised about it. He did. I mean, he's not, and I would not consider him elderly. But then again, on this podcast, we have noted that although Jennifer Lopez is an older worker for purposes of the Age Discrimination and Employment Act, she's not really an older person. I would say Justice Kavanaugh is not necessarily an older person, but he was very much on this tip in oral argument. He was. And you also heard some of them referring to, you know, you call your mother every Sunday. What if she doesn't

answer? Right. So you did get the idea that either the justices were thinking about themselves or they were thinking about elderly parents, perhaps. Or being elderly eventually. Right. Right. Right. Exactly. Exactly. And so, you know, you had the chief in Kavanaugh being, you know, very concerned about the idea that, that the police wouldn't be able to enter. And, and, and of course, this is not for, you know, criminal investigatory purposes, right? This is for the sort of, you know, community function for wellness checks, that kind of thing. And so, you know, they seemed, they seemed to want the police officers to be able to enter without getting a warrant first in at least some circumstances.

But then you had people like Justice Sotomayor being much more skeptical. Well, Justice Sotomayor was actually really interesting because she made the point repeatedly in oral argument that there had actually been two seizures here, that the first seizure occurred when the police arrived, found Mr. Cornelia, and determined that he needed to be dispatched to the hospital. And then the second seizure, and the one that is more problematic in her view,

is then subsequently going into the home and removing the weapons and the ammunition. And so the first, I think she would say, falls within that kind of emergency older person falling exception that I think she would be okay with. But the second is very much outside of that. that the prospect of allowing the government into the home really went against common law antecedents and also just general understandings of the sanctity of the home. And she seemed to be kind of in league with that. She did. And, you know, you could see as a factual matter, you know, because there were two seizures, the first seizure took Mr. Cornelia sort of off of the scene, right, and, you know, sent him to the hospital for evaluation.

And so that made the second seizure seem much less reasonable. Then they went into the house and took the guns where after he'd already been removed. And so, you know, you can sort of see, it didn't seem like there was any exigency certainly at that point. And then of course she had, you know, this may be a case where you have an interesting division in the opinions because Justice Gorsuch was right there with her, but more based on his respect for property rights and skepticism of weird coalition of unlikely bedfellows on the briefs in this case. So you had a number of civil rights groups joining with, I think, libertarian groups is a fair way to describe it, both in their skepticism of the prospect of expanding the caretaker exception.

And you don't typically see a lineup like that, but you definitely saw it here. Right. And a lot of gun rights groups. Yes. Because a major reason to go in would be to remove firearms. No, exactly. I mean, so a lot of sort of strange bad fellows here. One thing that was really interesting is that the United States intervened here and it actually intervened to take, I think, a quite sweeping position of the expansion of the caretaker exception. And I think it actually seemed more expansive in the briefs than it did at oral argument. At oral argument, Morgan Ratner, who argued on behalf of the Solicitor General's office,

seemed to be at great pains to walk back the expansiveness of her vision of this exception, as it had been stated in the brief. What did you think of this? Yeah, it was interesting. I mean, I think that she did an effective job at argument of, you know, limiting the position to something that was narrower than what Respondents Council was proposing. I think he'd gotten into a little bit of trouble before she stood up or before she got on the phone, I guess, these days in not limiting his position. And so she came in and said, well, no, the government really can only come in where there's sort of relatively immediate, you know, concern about the health or welfare of

a person. And, you know, it may reflect, I have no idea, obviously, how the argument process or the argument preparation process went. But, you know, oftentimes there were times I can think of where, you know, the position gets refined at argument or gets refined during the moot court process, right? So the brief has been a little bit more broad. And then you realize in the course of the moots, which in the SG's office are famously intense, you know, famously rigorous, that, you know, the position you've staked out needs to be narrowed. And so, you know, this is not the first time the government has come in with a narrower position at argument, something that it thinks is easier to defend.

And the justices seem to be of an appetite to whittle things down a little bit, sort of find, again, that delicate balance between the two positions. Some middle ground that would allow entry for these emergencies, whether for seniors who have fallen or for the prospect of suicide threats, but that did not risk the caretaking exception being interpreted broadly to allow for limitless entry into the home. And Justice Alito acknowledged at one point that one of the things that is troubling to a lot of people about the caretaking exception is that it doesn't seem to have any clear boundaries. So what do you predict in this case? How will Kenelia be resolved? I do think it'll be some narrow middle ground. I mean, it's always really difficult to predict,

obviously, and even harder with arguments in this format, where you get less of a sense, you know, which side justices are really concerned about or attracted to because of the questioning format. But it does seem like there are significant concerns at the extreme on both sides. And so it could actually be that this is a case in which the government's narrowed position is something that would be attractive that you know you allow the government you allow police to come in when they really do think that you know someone elderly has fallen um but but you don't allow them to come in on you know well we think there are firearms here and people seem generally unstable in this house right right something like that wouldn't be quite enough. Or the cat up a tree, as the chief justice mentioned, that wouldn't be enough either. Well, we will stay tuned and we'll see how this gets resolved.

Again, I think in all three cases, the court's seeking some kind of middle ground. All right. So, Ginger, it's time to get ready for this week coming up. And what a week it's going to be. There's some really big cases. Certainly, if you're a sports fan, there are some really big cases on the horizon for March 29th. So, on Monday, March 29th, the first case up is Goldman Sachs Group versus Arkansas Teacher Retirement System. And the question here is whether a defendant in a securities class action may rebut the presumption of class-wide reliance recognized in Basic Inc. v. Levinson by pointing to the generic nature of the alleged misstatements and showing that

the statements had no impact on the price of the security, even though that evidence is also relevant to the substantive element of materiality. And then there's a second question, whether a defendant seeking to rebut the basic presumption has only a burden of production or also the ultimate burden of persuasion. So this will be something that those who litigate class actions and securities class actions specifically will be very interested in. Are you interested in this, Ginger? Well, I don't litigate securities class actions. You're like, no, no, girl, I'm not interested. It's actually, I think, going to be a really well done argument. So Tom Goldstein is on the brief for the Arkansas teacher retirement system. And Cannon Shanmugam from Paul Weiss is on the briefs for Goldman Sachs. And also, I think Sullivan and Cromwell, Goldman Sachs' longstanding counsel is also working with them

on that too. So that'll be, I think, a very, certainly as a question of craft will be an oral argument worth watching, even if you aren't exactly on the edge of your seat for class action security case. Yeah, that would definitely be a great argument to watch. They're both fantastic advocates. And, you know, I mean, there has been sort of a series of cases trying to limit the basic presumption in the past, you know, five to seven years, I guess, maybe longer than that. And so this is the first one with the new court or the court's new composition. So, you know, I think it'll be interesting to see. It might be an initial indication of how this court will think about, you know, securities law and class actions.

And again, the two adversaries here, I think, are really interesting. Goldman Sachs and the Arkansas teacher retirement system. I mean, it sort of has a David and Goliath kind of quality to it. Moving along, the next day, Tuesday, March 30th, there's also another case that I think is going to be riveting to many, TransUnion LLC versus Ramirez. And the question here is whether Article 3 or Federal Rule of Civil Procedure 23, that's the class action rule, permits a damages class action when the vast majority of the class suffered no actual injury, let alone an injury anything like what the class

representative has suffered. Again, these class action cases, I think, may seem a little dry for individuals, but they are critical access to justice vehicles if you think about aggregate litigation being a way by which the little people can sort of have their day in court. And so efforts to limit class action litigation, that's an important access to justice question. And this is another really big case with some really interesting and talented advocates on both sides. So James A. Francis will be arguing on behalf of Ramirez. And Century Club SCOTUS advocate Paul Clement will be arguing it for TransUnion.

So TransUnion not only are interested in keeping your credit card safe, they're also interested in bringing the biggest guns possible to this particular fight. And so they have Paul Clement, who we've profiled on this podcast before. So what do you think of this one, Ginger? Anything to look for? I think you're totally right that, you know, there's a whole class of federal statutes that regulate commercial conduct, you know, vis-a-vis consumers. And really the only way to enforce them is through class actions. You know, there's just no other effective way to do it because for an individual plaintiff, the cost of litigation would be, would far exceed any kind of, any kind of reward. So, you know, I do think this may be another case in which the court tries to

limit that as it has through various arbitration and antitrust cases, you know, over the past few years. You know, also the question of when you have an Article III injury for violation of a statute, of like a credit reporting statute of the sort that's at issue here is something they've been very interested in in recent years as well, right? Can a statute create an Article III injury by, you know, essentially telling you that you have a right to accurate credit reporting or whatever it is? And something is similar here. I don't have it at my fingertips. Like I said, this is probably not high on my must-follow list of cases. But again, I think it would be wrong to dismiss the importance of these cases for questions of access to justice.

Consumer litigation, they're tremendously important. It just takes me a minute to actually get into it. And this might be one of those. But I think many Americans will be very much attuned to the court on Wednesday, March 31st, which is when the court takes up a series of antitrust suits, this time dealing with the question of college athletics. So there's a suite of two cases, American Athletic Conference versus Alston, and National Collegiate Athletic Association, also known as the NCAA versus Alston. And both of them

deal with this question of antitrust liability and college athletics, and specifically the whole question of whether college athletes should be paid like regular athletes, like professional athletes, and is there an antitrust violation for failing to do so? So the question presented in the first case, American Athletic Conference versus Alston, is whether the Sherman Act authorizes a court to subject the product-defining rules of a joint venture to full rule-of-reason review

and to hold those rules unlawful if, in the court's view they are not the least restrictive means that could have been used to accomplish their pro competitive goal. And the second question presented this one in NCAA versus Alston is whether the U.S. Court of Appeals for the Ninth Circuit erroneously held in conflict with decisions of other circuits and general antitrust principles that the National Collegiate Athletic Association's eligibility rules regarding compensation of student-athletes violate federal antitrust law. So fair to say this is the most high-profile case of the sitting. Absolutely.

And it's playing out in the backdrop of March Madness. That's right. That's right. How does that affect the justices? Like, do they have a bracket? Are they, did their brackets fall apart over the course of the last week amidst all of those Cinderella stories and whatnot? I'm sure that some of them don't know what March Madness is. And then you have people like Justice Thomas, who are huge sports fans and particularly college sports fans. Who doesn't know? Even I know what March Madness is, even though I don't care. It's true. Well, Justice Ginsburg might not have in her day.

She's like, March Madness is when we all go and see Tosca and they play the music really loud in March. No, not that. Not that. I think they all reasonably have some sense. I bet like Gorsuch and Kavanaugh and the chief, like they definitely follow it for sure. Yeah. I'm sure they, I'm sure they do. And their law clerks certainly. Yeah. Kagan, I bet Kagan follows it too. Probably. I don't know that our justice follows it that closely. I don't recall her being super into it. I don't think so. She's more of a baseball fan. She's definitely more of a baseball fan for sure. For sure. But it's, I mean, again, how do you do you think this this actually I thought was fascinating last week when they had all of that discussion of the disparities between the amenities and circumstances that had been allotted to women basketball players at the NCAA tournament versus the male players. How do you think that will sort of shadow, if at all, this particular go around the court. I think it will be there in the background. You see it in the amicus briefs, too. So it's in the case as well as in the press. And, you know, the NCAA is making a pitch here that it should be subject to very, very limited antitrust scrutiny because its rules are designed to promote amateurism. And by that, we mean they're

distinguished from professional sports. But, you know, their briefs also talk about educational and personal enrichment, you know, that comes from playing sports, that kind of thing. So I think they are trying to, you know, have some of the moral high ground here, right? And so that backdrop is not helpful. I mean, we want the women athletes to be even more amateurish than their male counterparts. It does not look like a great look going into this oral argument. I think this will be another very good oral argument in terms of craft, because we have, again, some really big guns out here. So representing the Big Ten Athletic Conference and the NCAA are Andrew Pincus of Mayor Brown and Seth Waxman of WilmerHale. And

these are both repeat players before the court. Waxman famously served as Solicitor General of the United States, and Pincus has argued something in the range of like 30 cases before the court, including a recent victory in AT&T Mobility versus Concepcion, which is, again, one of these very important class action cases in recent years. On the other side for Sean Alston and the student athletes is Winston Strawn's Linda Coberly. And she is a very experienced appellate litigator. But I think this might be her first outing at the court. Is that your understanding as well, Ginger? Yeah, I think that's right. What's this going to be like? This is a high profile case to be taking your maiden voyage. It is. But again, the telephonic format is really going to change the experience, right?

It makes it much more regulated. And so, you know, no one justice can stay on you on a particular topic for very long. So in that sense, you know, it may be maybe it's a little bit better to do your first argument. Yeah, that's true. Under this format. That's true. But yeah, I think I think it will be really interesting.

I think the NCAA's position here is a fairly broad one, right? I mean, they are asking, you know, to not be subject to very much antitrust scrutiny. And they largely won below, actually. You know, the Ninth Circuit upheld the vast majority of their eligibility rules. So it's really only a couple things that we're talking about that they didn't fully win on. So it's really only a couple things that we're talking about that they didn't fully win on. So it's already interesting that the court granted cert in that context, you know, that may suggest, you know, some larger interest in, you know, thinking about the way that antitrust law applies to these sort of sports leagues, and in particular, the NCAA.

I think it'll be really interesting, maybe even groundbreaking, and just sort of the way we think about the question of college athletics going forward. I mean, as you say, this is not a case they necessarily had to take up, and the fact that they're interested in doing so suggests maybe some movement. Definitely. In any event, Linda Coberly is the only woman arguing in next week's sitting. And I guess that's progress, like to have one of, I guess, seven. She's the magnificent seven.

She's one of them. Good for her. So, Linda, we wish you well here at Strict Scrutiny and your maiden voyage. We're really looking forward to watching you take your shot at the highest court in the land, as it were. Basketball metaphors, Ginger. Basketball metaphors. Also more of a baseball fan. I also hate sports, so whatever.

Okay, it's time for some court culture. Ginger, I want to hear about what it's like to clerk at all the levels. Like you have been leveling up from day one in your time here in the world of the court and its ecosystem, starting at the Southern District. Then you go to the Second Circuit. Then you go to the Supreme Court. Then you argue before the Supreme Court. Tell me what it's like to practice and be at all of those different levels. I mean, they're all amazing in their way.

And I love the Southern District. You know, I loved being able to see trial proceedings and all the interesting parties. You saw Lil' Kim. You saw Lil' Kim. That's right. That's right. Lil' Kim was sentenced right before my wedding, in fact.

That was good. So you saw Lil' Kim, and you got to see lots of litigants at the Southern District. Yeah, and just, you know, such a range of cases, you know, copyright cases about rap songs and criminal proceedings and, you know, trademark cases about the local wine shop, you know, that we could go visit a few blocks away. You know, it was just so much fun, right, to see all that. And Judge Lynch was just a wonderful mentor. And then, you know, the Court of Appeals is amazing as well. Justice Sotomayor, right?

You had the best co-clerks. We had so much fun. We did have a lot of fun. We were really lucky, right? The four of us were close and we just had a really great, really great time. And that's particularly nice in the appellate court, I think, right? Because the work can be a little bit more monastic. You know, you get your cases and you read the briefs and you write your bench memos and, and then you draft opinions. And, and it was so nice to just all be friends and have that interchange. So can I tell a story about you? I think we really corrupted you. Like I really do. Like I often think about it. So listeners, Ginger is not just like a savant in arguing before the Supreme Court. I'm very talented appellate litigator.

She's actually a violin prodigy. I mean, you studied violin in high school, like at sort of Cleveland's equivalent of Juilliard. Yeah, the conservatory there in Cleveland. Yeah. So I mean, she's an amazing violinist. And you would come to chambers early, early early early in the morning when no one was there so you could practice and and then the cretins would arrive some round around eight

sometime around 8 30 and disturb you like with all their stuff but you would like go home and you would practice and then one day we were just like ginger we're gonna burn this violin to the ground if you don't come do some stuff with us and you were like like, oh, guys, I have all these things I'm doing. You're like, no, Ginger, we're kidnapping you, and we're going to make you watch America's Next Top Model. And then you loved it. You loved America's Next Top Model. That was a great season of America's Next Top Model.

You watched this religiously. Do you remember the best lines? It was cycle three. Was it cycle three? I think it was cycle three. I don't remember which cycle. Right, but there were lines that we all repeated to each other. Do you remember the best lines? It was cycle three. Was it cycle three? I think it was cycle three. I don't remember which cycle. Right. But there were lines that we all repeated to each other.

Like when Simon Doonan said to Cassie, my dear, I did not say you were a hoe. I said you had hoe style. So we corrupted Ginger. She was literally just like she was a girl who came in and played her violin, worked on her work, left and played the violin some more. We're like, no, we're going to corrupt you. We did. And we totally, TJ2, Amy, Carpamenta and I, we corrupted you, Ginger. We also corrupted the justice, I think, because we got her to watch America's Next Top Model. That's right. That's right. She was a lot of fun. I don't think she loved it as much as you did.

I think she was puzzled, briefly amused by it, but then alarmed is the only way I can describe it. Probably. Well, you know, reality TV. Yeah. She was very put off when they voted the girl out. She was just like, they've done all of this work and now one of them has to leave. And we were like, yes, that's how this works. She was just very put off by that.

But yes. Okay. So Second Circuit was great. You had amazing co-clerks. Truly wonderful people who helped you find your way in pop culture, which is important, I think. Then you go to clerk for Ruth Bader Ginsburg. And this is before she becomes the Notorious RBG.

Did you know she was going to be a Notorious? No. I mean, and that's part of the fun of it, right? That she's the last person you would imagine having that moniker or enjoying it as much as she did. I think she really, you know, she really adopted it, right? And really kind of loved it, I think, in the last few years. But yeah, I mean, it was, again, very, very different. I mean, one thing that's different about it is that you have the cert pool, right? So you have all these cert petitions that you're, that you have to review, and the clerk split them up amongst chambers. And that was just a whole new skill, right? And just a whole new view of sort of the legal system, right? Just seeing all of these petitions coming up from all of the circuits and all the state courts and, you know, just how much is out there and how little the Supreme Court can review compared to.

Yeah. Compared to all the people who are seeking it. But, you know, and then the advocacy is amazing. Right. You just you just see these, you know, men named Paul, right? Yeah, I mean, that was kind of amazing, right? To be able to go to pretty much every argument, you know, for that term, and just see all the different people and see, you know, who was effective and who the justices thought was less effective. I mean, that's true at all at all levels of the court system, right? Part of the great thing about clerking is that your judge will tell you afterwards whether they found some lawyer's courtroom technique effective or not, or off-putting or whatever. And that's true at the Supreme Court as well. So that was really educational, you know, thinking about becoming an advocate yourself, right, one day. And you were at the Solicitor General's office. Let me make sure I get this right. You were there when Kagan was SG. You were also there when Neal Katyal took her place.

And then Don Verrilli. That's right. And then you peaced out. That's right. So I was there for the full eight years of the Obama administration. I spent the last few months in the Office of Legal Counsel. But yeah. So what is it like to go before the Supreme Court and, you know, Ginger Anders representing the United States? I mean, the United States part of it is, is really, it's just such a privilege, right? Like it's, to say that you're representing the United States, it feels like such a huge responsibility. And, you know, you do have that obligation to, you know, do justice or, you know, act in the public interest. And we really took that super seriously. And so you stand up there and you feel like you have this huge responsibility to uphold that, to not let anyone down in the government. And so that was, you know, that was a really pretty weighty part of it.

You know, but at the same time, like, you feel every argument, it's true of anyone in private practice too, right? There are such team efforts. Like, the argument is just this little tip of the iceberg, and there have been all of these people who have, you know, helped write the brief and then done moots for you and consulted with you. And, and especially within the government, you know, you're so lucky when you represent the government because you have these like subject matter experts and the agencies, you know, the people who've handled the litigation to that point. You know, when I had cases about

treaties, I could talk to the people at the state department who had, you know, been the ones to administer that treaty for 10 years or whatever. You know, when I had labor cases, I could, I could call up the department of labor and ask them to find me some statistics. You know, it's this amazing resource. It's like having a research assistant, really. Right. And they're the, it's not like having a research assistant. And they're just, you know, they're, they're like the foremost experts in their fields. And so you're able to draw on that. And that's kind of an amazing thing as well.

So by the time you stand up there, you feel like all of these people have contributed to making you ready to be up there and you just have to communicate it to the court. That's a lot of pressure. Yeah, it can be. It can be. It does feel like that. It also feels like you've been well prepared, too, though, right? I'm just like sitting there. I'm like, I wonder if like my research assistants, like when I finally send papers out to law reviewers, they're just like, you better bring this home, Murray.

Like, this better be good. Like, I hope they're not doing that. The pressure now that I'm thinking about, like, that's incredible pressure. And you worked with like some truly terrific lawyers who have gone on to do amazing things. So one of your colleagues at the SG's office is none other than California Supreme Court Justice Leandra Kruger, who is perpetually mentioned as a likely prospect for the Supreme Court. What are some of the best memories of being in that office? Oh, gosh. I mean, there are a lot. we had a really good group and we were very lucky. So there are, there are 16 line attorneys and, you know, most people who start in the

office are maybe in their early thirties and then, you know, people stay for anywhere between, you know, five or 10 years. And so, you know, we're, so we were all sort of in a similar place in life, I'd say. And, um, you know, we hung out a lot together. I had one friend who I had tea with every morning, you know, just come into his office. And he was a Scalia clerk, you know, so we came from very different, we had very different views on a lot of things. But not tea. But not tea.

But not green tea. We had, yes, we agreed on the green tea. And so every morning we'd have tea together. And it was just a really nice way to start. That's like a very Ginsburg-Scalia story, except not with opera, but with green tea. I like that. Yes, that's right. I bet they're both like, that's exactly what they would have liked for their clerks, to find common ground over some inanimate substance.

It was a really nice office, too. That ideological mix is important for the office, actually, right? Because it has, you know, if you're about to argue a statutory interpretation case, you really want to be mooted by people who represent the full range of the court and somebody who can tell you how Justice Scalia at the time or now Kavanaugh or whomever, you know, would approach those sorts of issues. So it was always, the office was always very mixed and tried to do that on purpose. And, you know, we, I think, took some pride in the fact that we were all, you know, personally close friends. Well, as someone who takes a lot of pride in personally being your close friend at some point,

I will say Ginger played the music at my wedding. Like she's been there from the beginning. Godmother of my dog. As you are mine. Yes. I'm so glad that we could have you on the show. We love when you are arguing before the court. We're really excited to watch you do your thing before the court and everywhere else.

And we're really excited that you were able to join us today. So thank you for helping us break down last week's sitting and the sitting to come. And Ginger Anders, anytime you want to come back to Strict Scrutiny, we are extending an invitation to you. And you join the litany of open invitations we have. We have one out to Meghan Markle. We have one out to Elena Kagan. We have one out to Taylor Swift. We have one out to Amanda Gorman.

And now we have one out to you, Ginger. So please feel free to come back anytime. Thank you for joining us. Oh, thank you so much. It's really great. A lot of fun. All right. That's all we have time for today. Strict scrutiny listeners. Many thanks to our producer, Melody Rowell, who

always takes this raw audio and turns it into something fantastic. And today she has her work cut out for her, as well as Eddie Cooper, who does our music. And many thanks to our GLOW subscribers. If you'd like to support the podcast, please feel free to do so by subscribing at glow.fm forward slash strict scrutiny. See you next week.