Strict Scrutiny - Standing Cheese

Episode Date: January 20, 2020

In the very first live show, Strict Scrutiny goes blue at the University of Michigan in Ann Arbor!  The full crew recaps two arguments from the January sitting (Kelly v. United States  and Thole v. US Bank) and notes some uncomfortable interactions inside and outside of One First Street. They also discuss upcoming student conventions for the American Constitution Society and People’s Parity Project after Leah and Melissa explain to Kate and Jaime what GTL means. Thanks to our hosts, the ACS student chapter at the University of Michigan! 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 to a very special episode of Strict Scrutiny, a podcast that is so fierce it is fatal in fact. So as that noise might have made clear, it's not just the four of us sitting around in a studio or recording remotely like we usually do. This is a special

episode because it is our very first ever live show. And we chose to do the very first ever live show at the greatest law school in the United States and the world. That law school, of course, which I don't even need to explain, is the University of Michigan in Ann Arbor. So on today's episode, we are going to cover some breaking news and also get around to recapping two and a half or so of the January cases that have been argued thus far. And then we will cover some court culture. So let's get it started. Since this is a live show and people have never really seen us in the flesh, let's introduce ourselves. We actually haven't even seen some of each of us in the flesh, so there's that.

So hi, Jamie. It's so nice to meet you in person. You too. Actually, I have met all of you for the first time in person. I don't even know how that's possible that we didn't meet before, but I'm Jamie Santos. Really excited to be here. I'm Leah Littman. Also very excited to be here.

Melissa Murray. Melissa Murray. Very happy to be here. I'm Leah Littman, also very excited to be here. Melissa Murray, very happy to be here. And Kate Shaw, so am I. So some breaking news from the Supreme Court. Just last week, we got what can only be described as the SCOTUS version of hot tub time machine in the form of a 1993 memo from Justice Anthony Kennedy to Justices Antonin Scalia and Byron White. Here's what the memo says. Dear Byron and Nino, in my lower level office at home, I have a fax machine. Notice that fax is in all caps.

Andy has a lower level office, so work is being done at every level of the Kennedy home. So that's great. You can use it to send and receive a fax anytime you like. Mary and I would be pleased to have you use it. In fact, I encourage you to do so so that you can see if you want one of your own. Yours, Anthony M. Kennedy. So, okay, wow. This memo is peak 1993, but it's also just peak Justice Kennedy. I don't want to

destroy any court confidences. I will just say he remained enamored with that fax machine for a really long time. And others did too, I should say. So last year, my former boss, Justice Stevens, we lost last year, in 2018, an op-ed that, you know, created a little bit of controversy arguing for a repeal of the Second Amendment. Some of you might remember it. So Adam Liptak at the Times recently told a story, which is that the way Justice Stevens submitted his draft op-ed was via fax. And so there was a buzz in the corner of the New York Times office, and everyone was like, what is making that noise? And they walked over to it, and it was a fax machine that no one remembered was there. And a draft op-ed emerged from it and eventually made its way to the pages of the New York Times.

So they all loved fax machines. What I love about the story is I'm just kind of imagining the situation where you have Justice Kennedy, you know, peeking over the shoulder of the installation guy, because I'm sure he didn't do it himself. And then I could just see him saying, Mary, Mary, you got to check this out. This thing is so cool. And, you know, Mary kind of rolls her eyes and says, yeah, it's super cool, Tony. Why don't you, you know, invite Nino over? Oh, that is a great idea. He grabs his official stationery and goes over to his typewriter and you've really thought about this a lot. Okay. There was a response. This was found in Justice Scalia's papers.

And so the response, which Justice Scalia has penned on top of the memo, is, Dear Tony, thanks for the offer. We should keep it in mind. Which is kind of, I think, Tony Kennedy, you have no chill. Anyway, so that was the OK Boomer part of this episode. I should note that just recently in this week's oral argument in Babb v. Wilkie, the Chief Justice, it was a case about Age Discrimination and Employment Act, and the Chief Justice asked a question whether the use of the phrase OK Boomer

by a younger coworker to an older, over 40 co-worker over over 40 is let's okay so sidebar the age discrimination and employment act is shady shady shady because it says that anyone over the age of 40 is considered an older worker for purposes of the statute and i resist that it might even be 40 and older. I actually, I mean, I care about this a lot because I'm 40, so I'm either, I either am or I'm not, depending on whether it's 40 and over or over 40.

So either way, too close for comfort. Justice's question, do we think that signals he's on Twitter? Like, because that kind of became a meme on Twitter. I think his kids are on Twitter. He has kids in college. Do you think he asks his kids what's going on on Twitter or monitors think his kids are on Twitter. He has kids in college. Do you think he asks his kids what's going on on Twitter or monitors their Twitter feeds? Do you think they maybe said

OK Boomer to him? He's like, send some of the facts. What is OK Boomer? But it is worth noting that the Chief Justice has a birthday coming up. He's going to turn 65 on January 27th. So OK Boomer might be something that's top of mind for him right now. Yeah, and he will apparently be celebrating that birthday in the other piece of news that we had to cover by presiding over the impeachment trial. Happy birthday! Happy birthday, Chief Justice Roberts! He recently swore in the senators as jurors in the impeachment trial and the court's public information office put out some information about how his role in the impeachment proceedings will work.

When he appeared at the swearing in, he was not wearing robes with any stripes. So he has chosen a missed opportunity. And there was no special hat, the little French thing from Justice Breyer. He didn't borrow that. So many missed opportunities. No sartorial flair. He will be attending Supreme Court arguments in the morning and the Senate trial in the afternoon. If he has to miss any arguments because of his role in the impeachment trial, Justice Thomas will preside. I feel like that might be a little weird if Justice Thomas were presiding at argument. Because he never speaks?

Partially that. And also, in addition to not speaking, he sometimes naps during arguments. So it might take away from some of his nap time, too. The advocates would love that, though, because they'd get to keep talking even if the red light goes on. So it'd be good. Did you guys notice, though, that the chief, there was no sartorial flair, but he came with a little note, like he had a little note card with him, which I noticed because when the chief justice swore in Barack Obama in January of 2009, some of you, you're probably all too young to remember this, actually. We all, as some of us older workers, remember this. But the chief justice famously slightly flubbed the presidential oath when he administered it to president-elect and then after the oath, President Obama. And for about 24 hours, there was actually real uncertainty about whether he was actually the president because the

Constitution has the language of the presidential oath in it. So a little uncertainty and then there was a private do-over the next day just to be sure he was really the president. Part of the drama, I think, in one of the books that I read was that he had thought about if he should bring notes. And he was like, no, I could do this. No problem. I won't screw this up. So I noticed when he ascended the dais in the Senate, he had learned his lesson. He had his notes with him. Fool me twice. The chief will also be driven over from the court across the street to Congress in order to oversee the impeachment trial. You can almost, if you were standing on the steps of the Supreme Court and you were pretty strong, you could throw the chief to the Capitol, but he's going to drive over. Maybe RBG can do it after working out with her. So our next breaking news is that we got some

opinions this week. And I'm just going to highlight one of them because it's a case that we covered that Lee and I covered, Jander versus, or IBM versus Jander. And this was an ERISA stock drop case. And the question in the case was about what the standard, you know, what kind of facts have to be pled to state a fiduciary breach claim after a stock drop. And when we talked about it, we said that Paul Clement, who was representing IBM, had changed his argument after cert was granted. So rather than focusing on whether enough facts were in the complaint, he offered this argument that effectively would make it so that there's no such thing

as an ERISA stock drop claim at all, that you virtually can never even assert one. And when Lee and I talked about, we said, you know, the justices did not like this. And there was a decent chance that it would just be what we call digged or it would result in a dig, dismissal because it was improvidently granted. And that's basically when the justices get buyer's remorse about a case, or when it's really late in the term and they don't want to write more opinion. And so that's basically what happened. So there was this very short per curiam opinion that where the justices said, listen, the focus of your argument is on things that weren't argued before. And so we're going to vacate this, the Second Circuit's order, its opinion, and remand it so that if the Second Circuit wants to talk about

this some more, then they can do so. But I think the court made pretty clear that the Second Circuit could also say, sorry, buddy, you waived your chance. And so I think it's really interesting. And I think, I do kind of wonder from the client perspective, whether this was, this idea was the client's idea or if it was Paul Clement's idea. And if it was Paul Clement's idea, I imagine the client would be not super pleased about the situation. So even though it's maybe not the outcome that they wanted, it is a little bit more favorable to them than an alternative outcome, which is just the straight up dig. Because here, at least, the court vacated the Second Circuit opinion and allowed the Second Circuit to consider these arguments. In a prior case, Visa versus Osborne, the court just issued an order saying the parties have chosen to present arguments that weren't presented at the cert stage, dismissed as

improvidently granted, but the lower court opinion stays in place. And in that case, I believe, the advocate- It Kotschel. So one might wonder why the court chose to give another shot to Paul Clement, but not to Neil Kotschel the first time. Who knows? Okay, so let's give a couple of updates from the most recent conference. Well, I should say, so we're recording this on Friday afternoon. The Justice's Conference case is on Fridays.

So we have some news from last Friday's conference. We don't yet know, at least this minute, any of the outcomes of today's conference. It's, of course, possible we'll learn a few things even while we're recording. But because we haven't yet learned anything from last week, we got three grants. Two of them were cases involving what are called CVSGs, calls for the views of the solicitor general. OccSGs, calls for the views of the solicitor general. Occasionally, or actually relatively regularly, the court will ask for the views of the SG's office about whether it should take a particular case. And so in two cases where the SG recommended grants, the court indeed did go ahead and grant. One of those was

an ERISA preemption case. One of them was a Railroad Retirement Board benefit denial case. And then it added a third case, which is a First Amendment challenge to a federal law that bars auto dials to cell phones. So, you know, not like the big blockbusters, but sort of, you know, three interesting additional grants. There were maybe more interestingly, a bunch of relists. So those are cases that the justices have had listed for conference and someone or some group of justices have decided, for reasons they don't tell us, that they're interested in taking another look or considering at a future date potentially taking up those cases. So a relist doesn't necessarily mean the justices will ultimately grant cert, but it indicates a much higher degree of interest than your average cert petition is likely to get. And so there were a bunch of those last week. To quote John Elwood, who writes SCOTUS

Blog's Relist Watch, he said about last week's relist, this week's relist involved the most comically high profile group of cases I think I've ever seen. If they actually granted in all these cases, everyone's heads would explode. And I think that's right. I'm only going to flag a handful of them. There are two cases that Melissa and I talked about last week. Both involve post-Masterpiece Cake Shop kind of equality and religious liberty potential clashes, a case called Arlene's Flowers and Fulton versus City of Philadelphia. And so both of those cases, if they take them separately or together, could present opportunities for the court to actually tackle head-on the question that it largely sidestepped in Masterpiece Cake Shop. There's the potential return of the Affordable Care Act's contraception mandate. There are actually a bunch

of lower court cases that have issued rulings pointing in lots of different directions involving whether the contraceptive mandate and the accommodation process that it creates violate RFRA, the Religious Freedom Restoration Act. There are also cases in the other direction that the accommodation process is so accommodating of religious objections that it is essentially inconsistent with the mandate under the statute or the statute's mandate that is then fleshed out in a regulation regarding the requirement that employers provide contraception. So those cases could, some combination of them them could come before the court. There's a constitutional challenge to a California non-profit donor disclosure law. People who

follow campaign finance are sort of bracing themselves for disclosure laws being potentially the next frontier in terms of the deregulation of the sort of legal framework around, you know, trying to impose some controls around money in elections. This is maybe part of that. There's a faithless elector case out of Colorado. So as folks probably know, it has happened a number of times in our history and twice in the last two decades where an individual has lost the popular vote but nevertheless ascended to the presidency because of an electoral college victory, right? Folks in this room know that. And it is the case that there are lots of scenarios in the 2020 election and, you know, future elections where the defection of one or two electors from voting for the candidate

that their state has supported could potentially turn an election. And so you've had a handful historically of electors who have tried to vote their conscience instead of just casting the vote for the winner of the popular vote in their state. And so there are a handful of lawsuits pending right now, including one out of Colorado in which an elector refused to cast a vote for Hillary Clinton, the winner of the state's election. And there's a Colorado law that required his removal and replacement with an elector who would vote consistent with the state's popular vote. And he successfully argued in the lower courts that that law is unconstitutional, that actually by design, members of the Electoral College should be able to vote their consciences as opposed to being required to vote for the popular vote getter in their state. And so these cases, you know, if the court decided to take them up, could potentially have huge ramifications in a very close election, you know, later this year or at some future date.

So there are actually more, but I'm going to stop because we have lots more to cover. So there's a lot more they could grant either for April, but more likely for next fall, maybe as soon as today. So another case that they are not conferencing today, meaning Friday, but are conferencing next week, but that still might make its way onto the court's docket this term is a case involving the Affordable Care Act. We could do an entire episode about this case, but it would just be me saying the word fuck over and over and over again. So we won't do it. There goes our PG rating. But briefly, the state of Texas, along with some other states, filed a lawsuit arguing that Congress's amendments to the Affordable Care Act, specifically reducing the tax penalty you have to pay if you don't purchase health insurance to zero dollars, made the mandate unconstitutional.

And because of that, the rest of the Affordable Care Act is invalid as well. A district court in Texas said, yes, you're right. It went up on appeal to the Fifth Circuit. The Department of Justice agreed with the district court ruling. And the Fifth Circuit said, yes, we agree that the, quote, mandate is unconstitutional. But we declined to decide now whether the rest of the Affordable Care Act is invalid. So several Democratic-led states and the House asked the Supreme Court to hear the case now and on an expedited basis so we could know within the next week whether they will do so. The case is what's

known as in an interlocutory posture, as in not all of the proceedings have finished. The District Court and Court of Appeals still need to re-decide whether the rest of the Affordable Care Act is invalid. And while that usually counsels against review, the House and the Democratic-led states are arguing, well, look, the court of appeals has already invalidated a provision of a federal statute. It did so on the absolutely ludicrous grounds that the Republican-led Congress strengthened the mandate rather than just reducing the tax penalty to zero dollars. In fact, on the day that the Solicitor General's office filed their papers opposing Supreme Court review, the president tweeted out that he had, quote, repealed and undone the individual mandate,

nominally contradicting the position of his Solicitor General's office. And so there's some possibility that the court could hear that case this term or in the near future, but we will wait to see. Fun times. All right, should we jump into arguments from this sitting? Let's do it. Let's do it. So the first case is everyone's favorite, ERISA. No, this is actually a case about Article 3 standing. It just happens to take place in the ERISA context. ERISA is the cracker through which to eat the standing cheese. So this is about pension plans. So under ERISA, there are a couple different types of retirement plans. The ones that you probably are most familiar with are 401k plans. But the ones that used to be quite common are pension plans. And the way pension plans work is that employees are basically guaranteed particular benefits. You know, if you work for

this long, you'll get $2,500 a month for the rest of your life. And that money is paid out of a trust. And it's paid out of a trust no matter how the trust is doing. So whether it's, you know, going crazy and making tons of money or whether it's losing money, the beneficiaries get the same amount of money each month. What that means is that the employer has the risk of loss. So if your investments aren't doing well, the employer has to basically make good on the promise by contributing more money into the trust. And then the benefits are also insured by a federal corporation called the Pension Benefit Guarantee Corporation. So that's the background that's kind of necessary to understand the case.

Very briefly, the facts of the case are that there were fiduciaries of U.S. Bank who invested the trust, in this case, in equity funds, which are basically kind of high-risk, high-reward funds. When the market's doing well, they make a ton of money. When the market drops, they can lose a ton of money. And the recession hit. The trust lost $750 million, and it was underfunded, so there wasn't enough money to pay all of the benefits. So the participants sued, and they said, you're recklessly investing our retirement benefits, and you should be required to account for that. After that

happened, the employer contributed a bunch of money back into the trust as they're required to do under the statute. And so the district court dismissed the case and said, there's no standing because there's no chance that these employees aren't going to get their benefits. There's enough money now in the trust. U.S. Bank has a ton of liquid assets. So even if your fiduciaries were doing crazy things, you're not actually harmed by it. So that's the general question is whether in this type of a context, there is Article 3 standing when there is alleged fiduciary misconduct, but the specific participants aren't individually harmed by it. So one interesting question that came up at oral argument was the nature of the injury to the plaintiffs. The chief justice immediately wanted to know whether they were claiming a past or

present injury versus a future one. And that's relevant because if they're claiming some sort of future injury, then it seems like they might have to show some possibility that the plan won't be able to meet its obligations or is underfunded. Whereas if they're claiming some sort of past or present injury, then it felt like their injury was more along the lines of we were denied some right of loyal stewardship or some duty of prudence by which you were supposed to act responsibly and didn't, even though it didn't cause us a monetary loss. Right. And the plaintiffs also had another theory. It was a property-based theory. And the theory basically goes like this. Congress,

when it enacted ERISA, it gave employees a property interest in the trust so that when the trust is being improperly managed, it's like an invasion of property. So someone who comes to your house and starts walking on your front lawn, even if they don't step on your tulips, they've still invaded your property. And so even without showing that type of harm, you'd be able to sue under property law. And so the plaintiffs argued that the same thing would be true here. And the other thing they argued, which is a kind of practical point, is that any other rule would be crazy because plan beneficiaries are really the only people who can sue here. They're the ones that have an interest in the plan being run properly. And the only other option is that the fiduciaries themselves can sue and they're not going to sue

themselves. So if plan participants can't sue, no one can, and that can't be right. So I love this case. I actually gave this question, the Thole question, two years ago to my FedCorp students as an exam question. And one of the reasons I like it is that it really tees up at least three different ways of thinking about standing doctrine and how you reconcile these different ways. So one is the role of history, because the plaintiffs in this case point out, well, look, at common law, trust beneficiaries used to be able to sue even if there wasn't actually any loss to their trust or they weren't personally injured financially. And so that history and that common law tradition suggests that the plaintiff's equitable interest or trust-like

interest here is sufficient for purposes of standing. And then another theory of standing is, well, look, Congress allowed them to sue, either because Congress thought when a plan fiduciary breaches these obligations, there is a sufficient risk that the plan will be underfunded, or because Congress created this kind of intangible injury in, you know, the equitable interest or in this right of like loyal oversight of the plan. But then the other theory is, well, no, there has to be an actually sufficient likelihood of something that the chief called tangible injury or real injury. And at various points, you saw the justices toggling back and forth between these different theories and asking how to resolve them. So the chief, to my mind, was really wedded to the last theory. Like he just wanted to know, look, what's your tangible injury? I think that courts

are totally capable of determining what's a sufficiently concrete, tangible, real-world injury that allows a plaintiff to sue. Justice Gorsuch, you know, the nominal originalist was like, well, look, there's a lot of history here, I'll grant you that, but, you know, there's no actual likelihood that you're going to experience any financial loss. Justice Kavanaugh was asking kind of a similar variation on that question, and so you saw the different justices basically trying to reconcile, like, which theory of standing should matter and why. Yeah. And the kind of two justices that I think are really interesting to watch, the chief justice, certainly. And what was interesting to me about the chief's theory here is he saw this as an issue about the separation of powers and the role of the court.

So he had several colloquies with counsel for both parties where he kind of said, listen, Article III, this limitation is the only thing essentially that allows us to kind of control what Congress does in some way. So otherwise, if we didn't have this limitation, Congress could basically kind of send everyone into court to kind of resolve abstract problems. And that's not what we're here for. And I want to scream back at him. That's not the separation of powers. That's judicial supremacy. These are different things.

Yes. And so Justice Kavanaugh, like you said, he had a much more practical kind of approach to it. So he had this statement where he was saying, all a much more practical kind of approach to it. So he had this, this statement where he was saying, all right, so let's assume you're right. The defendant's theory was what you'd have to prove to get into court is that not only was the plan underfunded, but the employer would be unwilling or unable to kind of make those contributions. So if, if they're kind of in a liquid company or they're on the decline, you'd also have to show that the PBGC wouldn't insure it. And so Justice Kavanaugh said, that seems like an insane amount of work.

That means before you even get to the merits of the complaint, you're having to have battling experts talk about how liquid the company is. And one thing he said was, is it worth the candle when instead we can just go for this historical approach? Now, I should say the defendants very hotly disputed whether the common law approach actually was the common law approach. And I think part of the problem when you get with these types of ERISA cases is that trust law is referred to as if it's this kind of consistent, everyone had the same idea. Trust law varied state by state. It varied different types of claims. There were different types of requirements. And so it's hard, it's not necessarily true that trust law actually had a different rule. So that's going to be one issue in the case. But that's just, I think, a general critique one could make of an originalist or historicist position. More generally, it's

presented as though there is some kind of coherent history or theory of, say, the Constitution. But in fact, there might actually be a real contest over what original meaning was with different people having very different views. I mean, so the battle that you're seeing here in the statutory context around the standing issue is just sort of a theme in the sort of broader battle between originalism and other forms of interpretation. Yeah, but I think it's different here because we are, this is statutory, we're interpreting an actual statute. And so Congress created a statute with the backdrop of trust law, but they also made their own specific decisions. And I think it goes back to what you're saying, Leah, like how much are we going to allow what happened before the constitution to kind of govern who we allow into

court when the Constitution created this new requirement that didn't exist beforehand. I hear all that. I think it's just a general critique of the originalist position. Like there are lots of holes you could poke in that. And history is not necessarily coherent, although it is often presented as though it were.

Yeah. And you might say that where history is messy and there is no clear answer, perhaps we should allow Congress to decide what constitutes a real injury, at least in the context of these statutory claims where Congress is creating the underlying right to begin with. Obviously, the court has suggested otherwise in Lujan, but it has really struggled to define exactly what limits there are in Congress's ability to create standing. And my, at least personal view, is better just to leave it to Congress.

It was a really interesting argument. I'll be curious to see what happens. And I think it's hard to predict. As in many ERISA cases, Justice Thomas could play a really key role. And he actually writes quite a few ERISA opinions. And he doesn't say anything. So hard to know where everyone stands. All right, so I feel like you guys sold that extremely well. How exactly was Orisa? I'm saying that it got there, actually. I don't think we need to do much Gilding the Lily for Bridgegate. It kind of has all of the drama baked in.

So we're not, we spent a good long while last week previewing this case, but it is just so rich and just so seedy that we have to do a little bit of recap from the argument. So for those of you who missed last week's episode,

this is the case involving the 2013 realignment of the traffic lanes on the GW Bridge. That was a nice, I like that. I like that. Forcing the voting rights. Right. No, it's just a reallocation. It's, you know, and actually there's all this like

Is it a theft or is it a realignment? Right, yeah, exactly. No, so, but all the shade thrown in the briefs, at least not in the oral argument, at the fact that like, the fact that Fort Lee had the three lanes to begin with was somehow part of this early corrupt bargain, which may well be true. It is kind of weird that nine of the 12, you know, three come from this one little town in Jersey, but none of that is at all material to the dispute here. Anyway, so this is the Bridgegate

case. And before we talk about the argument, I want to share a little bit of hot tea from a listener who sent us one of the best, like, outside the courthouse dispatches that we've gotten. So let me share this with you and also encourage listeners to please keep this coming. We love hearing. Slide into our DMs. We are ready. We are ready. Okay. So here's what this listener told us.

I went to the Bridgegate oral arguments yesterday after listening to you guys preview it. I thought you might be interested to know that Bridget Kelly, so she's one of the defendants, her extended family, like 20 of them, paid people to hold places in the public line for them, rolled up swarming with Trump hotel umbrellas. A clash of New Jerseyans ensued in which a diehard Bridgegate fan in the line called them out for cutting and for the Trump umbrellas. They fought back. So much drama and disappointment and the arguments hadn't even started yet. I love this because I feel like they are bringing the Jersey Shore

to the steps of one person. G-T-L. Wait, we translate. You can't even lie about the reasons you're realigning the... G-T-L. We translate, sorry. Oh my gosh, Kate. Tim Tan Laundry. Sorry.

Wait, is this an OK Boomer moment? Or do you know what we're talking about? No, it's the opposite. I think I'm the boomer here. You are. I think so. Do you remember the situation, Snooki? Oh, I remember the situation.

Polly. Mike, the situation. Sorrentino. DJ, Polly D. Nicole, Snooki. Pulizzo, Jenny, JWoww, Farley, Sammy, the sweetest bitch you'll ever meet, Sweetheart. Oh, yeah. I remember her. Okay.

Jamie and I did not prep for this part of the podcast. I mean, I'm just sitting here like, I can't even remember my kids' names that well. And this show hasn't aired for like seven years? There's been a family reunion. I mean, there's so much. I mean, I just, thank you New Jersey. Thank you for this.

Thank you for the Real Housewives. You've done so much for pop culture. And in some ways, like at a deep level, that is kind of the argument that Barone and Kelly's lawyers are making, which is like politics is dirty. Jersey politics is especially dirty. And all of that has nothing to do with a federal criminal law, actually. So that's the argument that this lane realignment above It's above the law. Or below it. I'm not even, you know... But it's...

But that's... So the one other piece of color that I will give you, so there's the outside, the courtroom color from a listener. And then there was a dispatch from Mark Walsh, who's a reporter who covers the Supreme Court, so he wrote it up for SCOTUSblog. And so Bridget Kelly is there, and she's been sentenced, but she is out pending the resolution of this case.

And so she's escorted into a seat near the front of the courtroom. And just before the arguments begin, former New Jersey Governor Chris Christie, who's at the center of all of this. Her former boss, whom she implicated when she testified, and then he denied it. And he wasn't charged. He's never charged. He's never been charged. Yeah, yeah. And so, but I gather there's bad blood there.

You think? I would guess, maybe a little bit. So the Supreme Court security, evidently not realizing all of this backstory, seats Chris Christie and his wife directly in front of Bridget Kelly and her lawyer. Don't know each other? Or maybe they did know. Maybe they did. Stir the pot a little ever exactly this reminds me of all the great things of jersey obviously um but one of my favorite onion articles

of all time when we were just talking about maybe the supreme court you know marshall's being in on the drama between bridget kelly and chris christie um is the spoof on a Jim Comey op-ed that The Onion ran where it said, Jim Comey, colon, I'm just a catty bitch from New Jersey and I live for the drama. This is when he was in the business of subtweeting and retweeting the president and saying all these mean things about him. So anyway, lots of- Has he left that business? You know, I think it's maybe gone a little-

Dialed back a bit. Yeah, dialed back a bit. Should we talk about the case? I mean, this is fun. But yeah. This is kind of the same. Okay, let's talk substance. So I think my general impression was that my thinking going in, which is that these defendants had a very real chance of prevailing before the Supreme Court, was confirmed by my reading of the transcript. I should say the oral arguments, the audio was not up. I mean, it may be up by the time we're done with this podcast. But from the transcript, they got a, you know, fairly sympathetic hearing. And the Supreme Court has narrowed the reach, both of the federal bribery statute and the honest services statute in recent years,

and just seems increasingly of the view. I mean, as I sat and read this, I thought, maybe they just don't think that federal criminal law should ever be used in the context of either this political, political actors or fiduciary, even, you know, breaches by private parties. I mean, they haven't said that. But in McDonald case, we talked about a lot last week. You know, there's a few signs, well, maybe some of this shouldn't be permitted under Virginia law, right? That was the governor who had taken all of these gifts and loans and in exchange done some stuff But not enough stuff to implicate said the Supreme Court the federal bribery statutes But the court said oh, you know, maybe Virginia law should take care of this and I sort of thought maybe that's what the Supreme Court seemed to think about, you know, these people suffered professional consequences. They lost their jobs

You know, maybe some there should be some state law consequences, but that federal criminal law is too blunt a tool to address this kind of messy, interpersonal, mixed motive sort of political misconduct. And I just think that, like, the Supreme Court is wrong in that there are ways to draw principled lines that allow the most egregious kinds of violations of, you know, public office or misuse of public resources for private gain

and allow those to be subject to the federal criminal laws without opening up this sort of universe of potential liability that might, you know, drive potential honest public servants out of the business, which is sort of the parade of horribles that Kelly and Barone's lawyers largely relied upon in their arguments. So I left feeling like they probably, you know, Kelly and her entourage probably felt like they had a pretty good day there. So I agree with you, Kate, but just let me play devil's advocate for a second. You know, maybe the court is of the view that DOJ and DOJ officials, you know, don't have time and shouldn't be wasting their resources, you know, going after these state officials because, right,

they need to enforce the Voting Rights Act. Great point. Just possible alternative. Of course, the census case was raised in the briefs. I wanted it to come up. I think they were scared of what they would invite on this podcast if they said one word about it. But that's surely lurking in the background. And at first, this whole idea that this whole idea that all politics is local, I mean, actually local, state law, do not make a federal case out of this. But also, if we had to call federal officials or state officials on the carpet every time they lied about what they did, maybe we would be doing this all the time, which is a kind of cynical way to think about it, but maybe completely appropriate for the moment. Well, look, the federal government says the lie standing alone is clearly not enough to support liability in a case like this, right? So you have both the realignment of lanes, but then also the cover story, which Kelly and Barone and a third defendant who pleaded out early in the case

offered, right, which was that this was all about a traffic study, right? There was no traffic study. But they had this cover story they told both internally and publicly, including in some state legislative testimony, that that was the reason for the realignment. And so what the federal government has said was that that was essentially a taking of public property, both the lanes themselves kind of, but the theory is even more that it was the labor of the Port Authority officials who were pressed into service in both executing and then concealing this conspiracy that was the unauthorized taking of these public goods. And so the lie itself is not something that the federal government has ever suggested should be criminal, right, under the statutes

at issue here, or under any federal statutes, right?'s not true i guess under some circumstances but here very much it is the property plus the lies that it's like the use of is the use of public resources backed by a lie the same thing as the taking of property and there was one thing that eric fagan argued for the government an analogy that he gave that i actually thought was pretty useful in trying to make the point. So he said, if there's a snowplow sitting there and I take the keys to the snowplow and I drive off in the snowplow, everyone would say I've obtained the snowplow.

But if I instead, he said, if I put on one of those masks from Mission Impossible and I impersonate the boss of the snowplow driver and I tell the snowplow driver to drive around in the snowplow and do the exact same thing, I have also obtained property by fraud. So, you know, where's the principal distinction there? I thought, you know, it's a reasonable argument. I still think obtained property seems so different from use of public resources. And when I was reading the

transcript, I kept thinking to myself, where else have I heard this, the idea, the use of government resources for personal gain to harm a political opponent. Does that sound familiar? No, definitely has not come up at all in the last few years. Well, I mean, again, all of this, I mean, they could have been prosecuted under the honest services fraud statute if that had not been narrowed in Skilling and McDonald. And so this is, again, I think if it turns out as you think it will, and I think it's very likely it is going to turn out that the defendants will prevail here, it's part of a broader trend toward limiting prosecutorial discretion and authority in these corruption cases. Well, and I mean, I think in the McDonald argument, so again, that's the governor who had been prosecuted and got this, you know, unanimous reversal of his conviction.

I think the federal government was sort of gave too much, too many kind of trust us answers in the oral argument. And I think that was something that made the court very nervous, right? The idea of these broad federal statutes in the hands of roving prosecutors with, you know, very heavy penalties attached. It was something that I think the government, that the court was nervous about. broad federal statutes in the hands of roving prosecutors with, you know, very heavy penalties attached. It was something that I think the government, that the court was nervous about kind of handing to the government. And I actually think Fagan... We'll only do this if it gets really bad, don't worry. Yeah, exactly. And that was essentially, that was, those were the assurances that

the government very unsuccessfully offered to the court in the McDonnell oral argument. I actually thought Fagan, so we should say that he is newly the deputy in the Solicitor General's office after the retirement from the SG's office of longtime criminal deputy Michael Dreeben, this kind of criminal legend. So he's now in private practice and Fagan has taken over this, I think, docket. And I think he did try to offer a lot of non just trust us, but here's a bunch of narrowing answers to the justices. And I don't think that this is a unanimous loss for the government by any stretch the way McDonald was. But, and I don't think it's,

I would not say that it's a foregone conclusion that the defendants here win, but I think it would be consistent with this trend. And I certainly didn't see the justices taking the position that this case is radically different from those other cases. I think the silver lining here is that obviously the court and the government are becoming

more skeptical of prosecutorial discretion generally, right? Yeah, definitely. Especially in like drug cases. One thing that I, yeah, right. I see what you did there. One thing that I thought was great about this argument is that the defendants had a divided argument, and they divided it up really effectively. And I don't think the court often allows multiple parties to be arguing in these cases like this, but the parties really did an admirable job. So Kelly's lawyer was really focused on the idea that regulatory authority isn't property for

purposes of the fraud statutes and then Barone's lawyer was focused on the idea that a public official doesn't commit fraud so long as the decision is generally within the officials authority and claimed that the government disputed that below but concedes it now and so I thought they did a really nice job of dividing up the argument and pressing these two grounds, you know, either of which would be sufficient for them to win. And I thought was a really nice way to divide up the argument. I'll say, just to kind of echo what you were saying about this being fairly rare, both in the Supreme Court, it's also

true of the courts of appeals. And one of the biggest reasons is that when judges are asking questions during oral argument, they don't like to be told, I'm not talking about that issue, my colleague will, because a lot of times, if you try to split things up between standing and merits, there's a lot of overlap, and judges want to be able to ask questions when they have questions and float seamlessly between the two. And I do think that impacts, if there were more divided arguments, there could be more opportunities for diverse attorneys to be arguing before courts of appeals and the Supreme Court. And I do wish that courts would embrace that a little bit more. The last thing I'll mention about that case is one of the reasons that I agree with you, Kate, that the defendants are likely to win is because Justice

Alito was pretty critical of the government's position. And he asked some questions like, you know, I was looking through the record, and I had a hard time finding this element, and I'm thinking, in a criminal case, if Alito is digging through the record, and you've lost him, you're probably not going to prevail. He was also very annoyed that the New Jersey deputy to the Port Authority was the deputy to the New York person who ran Port Authority. So, I mean, he was like big upping for New York. Oh, yeah. He might be the situation in all of this. So I will not comment on that. But along the lines of, you know, good signs for the defendant, in addition to Justice Alito maybe expressing some skepticism on the government's argument, Justice Breyer was oddly expressing concerns about the reach of criminal

statutes and the idea that the penalties for this were so long. He's like, oh my goodness, it's 30 years. That's too long. So yeah. So there's one other argument we want to kind of half cover. We want to cover one specific issue and it has to do with kind of dynamics between counsel. So there was this case, Romag Fasteners versus Fossil, I think it's one of our fashion cases from last week. It was really sexy and amazing. Billy Porter wrote in and said he loved it. So the case is about whether trademark plaintiffs have to prove willfulness to receive an award of profits. So versus statutory damages or other things like that to get specifically profits, whether you have to prove willful infringement. And in that case,

there were really interesting dynamics between councils. So the two council that were arguing, Lisa Blatt was arguing for the petitioners. She's the most experienced female Supreme Court advocate in the country. She's also one of the most experienced Supreme Court advocates in the country generally. On the other side was Neil Kachal, also a very experienced Supreme Court advocate, has argued dozens of cases. And let me just kind of set this up by explaining the kind of tradition of appellate advocacy in the Supreme Court and otherwise as well. So there's this tradition of extreme kind of overemphasized collegiality. So instead of referring to, you know, what this person said, you'd say,

my friend, my sister, my brother. You'd also... We're going to start doing that here. As my sister, Leah. Yes. And when you refer to a party's arguments, you're referring to the party usually, not the specific attorney, under the understanding that attorneys are just represent, they're kind of conduits through which parties make their arguments. So you'd say, you know, as the other side said, or as my friend on the other side said, that's how you refer to someone else during the argument. You understand everything's a team effort. It's not just one attorney that's making these arguments. It's everyone doing it together. That is not what happened here. It started out as a kind of team effort, and then it slowly broke down. So what happened is that the counsel for the respondents, Neil Cutchall, and I was reading

this transcript, and this jumped out from the page for me. He referred to Romag's arguments, the briefing and counsel, more than about 35 times or more, just with the kind of impersonal pronoun her. You know, she did this, she said this. It was, you know, her theory, if you adopt her arguments. And there wasn't any reference to Ms. Blatt. Only at the very beginning, there were a couple of references to my friend, but then the rest of his half an hour argument was this very jarring, impersonal use of her and she. And I was told by a couple of people who were in the courtroom at the same time that not only was he doing that, he was also pointing at her many times when he said it. And some of them were particularly, they seemed to me kind of jarring or egregious. And I'll list two examples. One, Justice Ginsburg was asking him

a question about the lack of uniformity of the case law that he was citing. And his response was, Justice Ginsburg asked her to cite a case in which callous disregard was enough before 1946 to find a profits award. Which seemed to me kind of both presumptuous and also kind of rude. And then the second example is he was talking about the claims that were asserted and he said, you know, she sought six million dollars, every dollar in profits. And, you know, Lisa was not trial counsel. She was not seeking anything. And I found it incredibly jarring. It felt personal. It felt accusatory. And Leah, do you want to explain what happened when she stepped up for her rebuttal? In addition to the examples Jamie gives, he repeatedly says things like,

so there are five separate treatises, which by the way, she misstates because she cites the wrong provision. So every single one of the cases she points to, I think actually boomerangs. It doesn't say what she says it does. And there's just like an element of, I don't even know what to describe it as, that is extremely off-putting. And it struck me as uncomfortable. Maybe it's mansplaining, maybe it's something else, I don't know. But I read Lisa's rebuttal as it annoyed her only because she stood up and her very first words, and this is someone who has never at all lost her words, was, so I don't know what to say. I didn't go to a fancy law school, but I'm very confident in my representation of the case law. And it was just a really odd and uncomfortable transcript to read. And I'm worried that listening

to it is going to be uncomfortable as well. And I'll also say that while I'm actually feeling like a little anxiety, even talking about this, like I feel very stressed about talking about this even. And the one thing I want to add that she said right when she stood up, even before she said, I don't know what to say, she said, you may want to cut me off, which is kind of an indication of like, I have to be, well, not that I have to be careful, but you know, this is, we're about to throw hands. Yeah. And Lisa, to be clear, Lisa is one of the most unconventional Supreme Court advocates in the business. She refers to the court as you guys. You guys said in this case this and that. I was wondering, I've seen Neil argue before,

but maybe this is just his style and I hadn't noticed it before. And so I looked through the last five years of his argument transcripts last night at Professor Walensky's house. Happy birthday, Professor Walensky. Yes. And to be fair, I didn't do an empirical study, but I skimmed through all of them. And although, of course, occasionally he used pronouns, that's common, right? You say, as my friend said, you know, he blah, blah, blah.

But in all of those arguments, he used my friends, the other side, respondents, they, the government, the state, as a kind of matter of course. There was only one case I found where he seemed to use he a little more commonly. It was Dietz versus Bolden. But in that case, it was still only, I think, seven or eight times. And also the petitioner in that case was an actual human man. So he says he, I don't know if he was referring to the other counsel, Canem Shamigan, or if he was referring to the litigant. And he also interspersed the he's with, as Mr. Shamigan said. So it was very different. And as you said, very jarring and off-putting. Not surprisingly, RBG had the last word here, because when Lisa Black got up for her rebuttal, she disclaimed that she had not gone to a fancy

law school. And I think Justice Ginsburg intervened to break the tension a little by noting. Ms. Blatt, Texas is a fine law school. Thank you. Yeah, I also find this stressful to talk about, Jamie. I don't totally know why. I think it's like one of those instances where it's just, it's uncomfortable and you're not sure what's going on. It's hard to prove.

Like maybe this reveals a flaw in the government's entire theory of the Title VII case where you're supposed to identify a person exactly like Lisa Blatt and ask whether they would be treated the exact same way that she was. But it's just like an instinct that like something about this is not quite right. Right. And I will say I tried to look for someone that's similarly situated to Lisa Blatt, but as we'll get to in a second, that's really difficult to do since none of the other arguments that I came across was Neal arguing against a woman, which is pretty typical of Supreme Court cases. With that in mind, let's shift to court culture. A couple of great opportunities for students. The American Constitution Society, ACS, one of our sponsors here today, will be hosting their annual law student conference

this March, March 27th through 28th, in beautiful, balmy Boston, Massachusetts at Harvard Law School. So if you are a law student and interested in that opportunity, it'd be a great time to go up there, hang out with all of the other progressive law students interested in these issues. There will be some great law professors who are going to be on the docket for that student conference and lots of great topics. In a year like 2020, there is going to be no shortage of interesting things to talk about and discuss. So that will be a must-see event. So please take a look at that. It'll be posted on the ACS website and also on the Harvard student chapters website. Another point we wanted to bring up, this is, you know, hiring watch. We

talk about clerkships sometimes. Judge Katzman, who is a second circuit judge, is hiring for the 2024 term. So a law student could get married, give birth, and have a baby, and the baby would be in pre-K before the clerkship even starts. This is problematic, right? Like, this is not good. Well, it's one way for judges to evade the constraints of various hiring plans is just to hire people who are, so far, who are not going to be subject to it. So that's, I think, one problem. Two, I think for y'all, I mean, talking to the law students in the room, it's a little hard to plan your life four years from now, right? Like, this wasn't really a thing when we were graduating from law school. A year or two, maybe, but that was, but certainly nobody was hiring four years out.

I think one problem of sort of the long leash for this is that I think it makes judges even less risk averse than they ordinarily would be. And so it sort of amps up the interest in people who have already clerked before, who have lined up some kind of other clerkship. And I think if you think about just the pool of clerkships being a scarce resource, and it is, and you are sort of having people double dipping and triple dipping, it really does shrink the pool of available clerkships that people who have no clerkship might be able to get. And so if you are truly concerned about the pipeline to clerkships and the diversity of that pipeline, that is a real factor.

So another issue slash topic we wanted to flag, which kind of combines the first two, is the People's Parity Project National Convention in Washington, D.C., February 7th to 9th. For those of you who might not know, People's Parity Project is an organization that was started recently by a group of law students and organizers who are working in a variety of different ways to try to make the law and legal profession a little bit more equitable than it might be now. And their conference, they are offering an all expenses paid trip to their conference for those who are selected. And if you are interested in applying, you can go to their website, which is peoplesparody.org backslash convening. Melissa, you look like you want to

apply. Had me at all expenses. So one kind of anecdote-ish about People's Parity Project related to the last issue we were discussing, the clerkship hiring is People's Parity Project is one of the groups, and some of the students involved in that organization are among the students who expressed some discomfort with a recent posting by the Harvard Law School Office of Career Services on their clerkship blog, and I should note I have some views and have expressed them as well, in which the clerkship office posted some opportunities with judges who had reportedly not received any applications from Harvard Law students, and those judges included Judge Pitlick on the District Court of Missouri, as well as Judge Van Dyke on the Court of Appeals

for the Ninth Circuit. Those two particular judges were rated as unqualified by the ABA and also had a rather lengthy history of doing anti-contraceptive and anti-LGBT litigation. And the clerkship office said it feels like, quote, or it is a wasted opportunity to not apply to these judges. And some people within the People's Parity Project, as well as me, took issue with the idea that they were broadcasting to the entire student body that it was a wasted opportunity for them not to apply to these particular judges. And as some students, know pointed out there is like a real concern with choosing to go and clerk for some judges who have this very extensive background in among other things anti-LGBT litigation particularly when there are concerns that those judges are going to be doing that same

thing as judges and this kind of came to fruition in a recent opinion by the U.S. Court of Appeals for the Fifth Circuit by Judge Stuart Kyle Duncan, a recent Trump appointee to the Fifth Circuit, in which he addressed a motion by a transgender prisoner to be referred to by female pronouns and said that the court wouldn't do that because it would give the appearance of impartiality. It was honestly just like a really long, fairly bigoted culture war harangue. And I think there's like a real discomfort with, you know, just broadly applying to all of the judges when some of the judges have really serious indications in their prior work that, you know, they are going to do this as judges. And I think that Fifth Circuit order was panned in sort of a satisfying way across the ideological spectrum.

I saw a lot of conservatives saying this is gratuitous and mean-spirited and just a wildly unnecessary and unjudicial writing. And I thought that actually there was a surprising degree of, you know, and an encouraging degree of consensus around that. I think a lot of people also made the point that when the Supreme Court heard its Title VII cases last fall, none of the justices, however they're going to ultimately rule in the case, seem to struggle with using correct gender pronouns for the parties before them, and it's almost, it's disrespectful not only of the parties before the Fifth Circuit, but actually of the Supreme Court not to at least take the cue that you use the pronouns that the parties before you use for themselves.

So so that I thought was a very nice point. I mean, Judge Wilkinson on the Fourth Circuit wrote an opinion in which he called a pure meanness, you know, not to refer to a transgender litigant by the correct pronouns. And, you know, the Court of Appeals just made this argument about, you know, there's no stopping point because people will want to be called all sorts of things, you know, if you identify a transgender individual according to the correct pronoun. They also cited an article,

a recent Harvard Law Review article by Jessica Clark. As she noted on Twitter, you know, a really good indication that they didn't actually read her article is that they misspelled her name. You know, so. All right. In related news, I just want to note that this week, the Academy of Motion Picture Arts and Sciences announced their nominees for the Oscars. What the actual F? Jennifer Lopez was completely snubbed for her fantastic performance. I was so glad you all discussed that in the previous episode so that we could then have a tirade about that on this episode because it's absurd, right?

There were so many snubs. I mean, Lupita, who had to play two different people in a movie that was actually terrifying to watch and I imagine to act in. Awkwafina was snubbed. No women directors, apparently Little Women directed itself. It was just trash all the way around. I will say, I have an Oscar party every year. I am very serious about it. And an Oscar. I have an Oscar party every year. I'm super serious about it. I've been doing it since law school.

The year that Gladiator was nominated, Carlos Singer, who is now a lawyer in LA, made an award-winning Caesar salad, and it was like very strong,

very strong contribution. Are you all getting invited to this year? I'm not having it because I'm not going to watch. You're protesting. Okay. This is crap.

I'm not watching it. We should do some counter-programming. Yeah, we should totally do it. I don't know, a live show that, like to compete? Like when Stormy Daniels folded laundry instead of the city that you do. We should do some counter-programming. Yeah, we should totally do. I don't know, a live show that, like, to compete? Like when Stormy Daniels folded laundry.

Instead of the state of the year, we should do that. So I thought she was amazing as Ramona. First, I mean, again, she is 50 years old. She is an older worker for purposes of the age discrimination and employment act. And she, like, I mean, right? She worked so hard and she does so hard. She was great. She's amazing. She was amazing in that movie. She is amazing payment act. And she, like, I mean, right? I know. She worked so hard. She was so hard. She was great.

She was amazing. She was amazing in that movie. She is amazing in life. Just, yeah. I mean, so. There you go, J-Lo. Yeah. And, like, Academy, I do not thank you.

I feel like, should we end on, I almost feel like we should end on the J-Lo note, but we did want to flag that it is not just the Academy, but the Supreme Court. How's that segue? That almost works. That is snubbing women in its oral, I mean, look, it's a complicated phenomenon. It's not the court itself necessarily. The court is not rejecting requests from female advocates to argue cases, but the numbers are pretty bad and they almost, especially dispiritingly, appear to be getting worse in the last couple of years. So in the January term, we've got 13% of the first-time advocates are women. Last year, the last three terms, it was 21%.

So of all the first-time advocates, one in five in the last few years have been women. Again, this term so far, 13%. Two of the 20 advocates arguing in January have been women. Again, this term so far, 13%. Two of the 20 advocates arguing in January have been women, two. And I do think that Jamie's point about additional divided argument, grant more cases. When you have a chance to invite an amicus, invite a female advocate to serve as amicus. There are lots of tiny little interventions that the court could make that could make a big difference when the denominator is this small. You add a couple of additional women advocates, the numerator,

and it could really make a difference. And I think that's a real problem. One of the, you mentioned first-time advocates, and I think that's a really critical figure to look at because what I've heard a lot of is that, yes, the numbers have been bad historically, but now there are more female Supreme Court clerks and it's going to get better. You know, we're on the upswing. But when you look at the fact that even first-time advocates, all first-time advocates over the last three years, it is virtually identical to all advocates. So it doesn't mean that, it means that, you know, new women advocates are not getting the opportunities just like people who are 20 years their senior are. It's really frustrating.

The same dynamic with clerkships. I mean, this is the kind of opportunity that one gets because one has done it before. And so if you don't even get your foot in the door, you are further limiting the likelihood that you will be asked. And so you can't even change or move the needle on this unless you make these initial interventions that give women a first time shot. So should we end on pizza? Sure. We do not have enough time to cover the utter foster cluck that is the recently introduced Supreme Court pizza. Let's just let it be said that Justice Kavanaugh is in charge of the cafeteria as the junior justice,

and he brought pizza to the court, and there's air quotes around it because it doesn't look like pizza. And all I have to say is that when Justice Kagan was the junior justice, she brought a frozen yogurt machine. Strong. Strong. A good showing. Strong showing. Women get stuff done. I mean, pizza would not have been a bad intervention if it was actually pizza.

What was it? It was like a sad piece of soggy bread with some tomato sauce in it, according to the reviews. I haven't actually tried it yet. Can I just say one thing? We have cert grants. Oh. Ready? Breaking news of the moment.

Are we all going to have ulcers? Right. Okay. So a couple of personal jurisdiction cases. Ford Motor Company versus, anyway, sorry, that's not what you care about. I care. I care, too, because I filed an amicus brief in that case. In support of a cert grant.

Okay. So second, Little Sisters of the Poor versus Pennsylvania. Oh. Okay. And Trump versus Pennsylvania. After that, Chiafalo versus Washington. These are versus Pennsylvania. After that, Chiafalo versus Washington. These are contraceptive cases.

Chiafalo versus Washington. I don't know what that one. Colorado Department of State versus Baca. Oh, that might be the Faithless Elector. That's a Faithless Elector case. Wow, okay.

It's going to stay a slow, boring term. It's fun to know, yeah. All right, you want to wrap? Okay. So it's going to stay a slow, boring term. It's fun to know, yeah. All right. You want to wrap? Okay. I feel like we've done a lot here. Maybe we've done enough. So we're going to thank all of the great students we've met here at the University of Michigan, one of the best law schools in the country. Melody, edit that out. And in particular, we want to thank ACS here at Michigan for bringing us out and for bringing Melody out.

It's really been a really incredible experience, and I've really loved interacting with all of these amazing students here. So thank you for having us. We, as always, are incredibly grateful to our stellar producer, Melody Rowell, who came to Michigan to do this for us. And of course, Eddie Cooper, who does our haunting theme music. And everyone else who helps us to get this show produced and out into your ear holes. We are really excited, as always, to be interacting with you. So please follow us on Twitter individually or collectively at at strict scrutiny underscore. And you can always, always support the pod and look great while doing it

by checking out our Strict Scrutiny merchandise and our Glow campaign on our website, www.strictscrutinypodcast.com. And just in case Lev Parnas doesn't follow me or the show on Twitter, we did want to be sure to invite him on the podcast now that he's doing media rounds just to see if he has any views about the federal bribery statutes and other things too.

I think this is a great platform for Lev. I agree, right? Like if he wants to share with us other notes and like lists of other crimes he wrote down to do, that's cool too. You could also do a live taping at the Trump International Hotel, which would be amazing. Also fine. Lev, slide into our DMs too. Yes. All right. DMs are open. Thanks so much. Until later.