Strict Scrutiny - State Courts Are Where It's At

Episode Date: June 15, 2021

Leah, Kate, and Melissa recap an important CVSG, the Court’s opinions (in Gary, Greer, and Terry), and a major Wisconsin Supreme Court case! 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 to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I'm Kate Shaw. I'm Leah Littman. And I'm Melissa Murray. The Supreme Court continues to play with everyone's emotions except yours, Leah.

They have been scheduling multiple opinion days each week in June, but they only release ACCA opinions, which I know thrills you, Leah. But the rest of us are kind of like, this is what we came for? I don't know. Audience of one. But what a one. Anyway, since that's their game plan, we're going to play ball. And I'm not going to lie, Leah is really, really thrilled about it. So Leah, do you want to give us the rundown for today's episode?

Yes. So today we will cover some news on the court's docket, as well as the opinions that were released on Monday, which while exciting, pale in comparison to Borden. And then we will cover some court culture that includes a notable state Supreme Court opinion and some sit up and take notice Stephen Breyer statements. So in terms of breaking news, we got a development in students for fair admissions versus president and fellows of Harvard College. And we've covered this case before. It is the challenge to Harvard's admissions policies. The plaintiffs here argue that one, it is illegal for schools to consider race in admissions, and two, that Harvard's admissions practices unlawfully discriminate

against Asian American students. Both the district court and the First Circuit rejected those arguments, and under existing precedent, it's well established that schools may consider race in their efforts to achieve a diverse student body. And the key precedent in all of this is Grutter versus Bollinger, which is a 2003 case from the Supreme Court. And obviously, with this new challenge, Grutter is really in the crosshairs. It was an equal protection case, but this case, because it doesn't involve a public university, is going to be decided on statutory grounds, Title VI, a federal statute that imposes conditions on schools receiving federal money, including the condition that they not discriminate on the basis of race. And so the real development

here today is that the court called for the views of the Solicitor General in this particular case. And so what do we think this means? For my money, Leah, and you can tell me if you disagree with me, I wonder if this request for a CVSG is really about kicking this can down the road a little bit, given that we already have some really significant cert grants for the upcoming term with abortion and gun rights that the court does not want to have an absolute barn burner of a term. And they're trying to just punt a little bit on this. Yeah. So I think doing the CVSG, basically inviting the solicitor general to weigh in on whether the court should take

certiorari, the conventional wisdom is it increases the grant, the likelihood that a court will take the case. But I don't really know what the deal is here. I mean, that just doesn't seem to be that relevant, given that the reason why the court might not take this case in order to revisit affirmative action is, as you noted, the fact that this case involves a statutory question rather than a constitutional one, although the statutory term, you know, has been interpreted to be coextensive with the Constitution, but that's still, you know, a bit of a vehicle problem. So I still think, you know, the CVSG slightly increases the odds of a grant, although I don't necessarily understand why that was needed.

It just seems like there were obviously four votes to take this case. Like, why bother with the CVSG? Except for, I think, maybe for the kind of political and optical timing reasons that Melissa identifies, right? Like, definitely four of them want to reconsider and probably five or six of them want to reconsider and maybe overrule or dramatically narrow Grutter. So I just like I'm just I'm puzzled by this. I'm not sure that this really does kick it down the line that far. I mean, you know, they could grant certain this, as Leah says, at the beginning of next term. So is this just simply an avoidance mechanism? Is it a courtesy?

Like, you know, there has been a change in the administration. I think it's likely the Biden administration has very different views on this than the Trump administration would have had. But you know, I imagine that there probably is an appetite among some on the court just to avoid this case entirely. But is this the way to do it? I don't know. Yeah, I don't think the CVSG does that. And I think that, you know, the end of summer is sometimes when you get a fair number of the CVSG briefs in, in which case it won't actually lead to the court delaying hearing the case until the following term. So I don't know. Unless doing something here, in this case on this day, means that they're going to do

something like throw some real bombs on Thursday when they announce more opinions. So maybe this is a distraction for Thursday. I don't know. Yeah. And when I have scheduled a vacation to northern Michigan. So of course, that's when we'll get like the ACA opinion and like everything else. I'll be in the woods. Don't tell me.

I will live in bliss. Are you really going to be like totally off the grid for a little bit'll be in the woods. Don't tell me. I will live in bliss. Are you really going to be like totally off the grid for a little bit? That was the hope. You should do it. So, all right. Well, we will obviously keep a close eye on this. My prediction, I think our collective prediction is that this is just a very slight delay. They will get the brief back. The brief will say, don't take the case. They'll take the case. They'll decide it next term. So like, I'm not sure why. Maybe this is an invitation to actually name a solicitor general.

That's what they meant. Maybe it'll spur that. Like just inviting you, like we're going to solicit views from somebody who has not been appointed in the hopes that you will appoint this person. Well, if that works, that'd be great. Okay, so let's move on to opinion recaps. As Melissa said at the outset, we first got a pair actually of ACCA cases. That's the Armed Career Criminal Act, not the Affordable Care Act. So this pair of ACCA cases, unlike Borden, we got to tell you, doesn't spark joy in Leah in quite the same way. So we are going

to luxuriate much less over this. This is not a Marie Kondo moment for us. That's right. Okay. So the specific question in Greer is how plain error review works in the case of so-called Rahaf errors. Okay. So plain error review refers to an appellate court's review of claims of error that were not raised in the district court, right? So something went wrong, but not something the district court was alerted to or considered. And Rahaf errors refer to errors under the Supreme Court's 2019 decision in Rahaf.

Rahaf held that a violation of the Supreme Court's 2019 decision in Rahaf. Rahaf held that a violation of the federal statute prohibiting felons from possessing firearms requires that the individual with a felony conviction knew that they had a prior felony conviction before possessing the firearm. Okay, so under plain error review, a defendant has to show an error, has to show that the error was plain, and that the error affected their substantial rights, which means there must be a reasonable probability of a different outcome. And here the Supreme Court says that ordinarily, rehafe errors, at least in cases like the ones before it,

don't affect the defendant's substantial rights because there isn't a reasonable probability of a different outcome. So the opinion was written by Justice Kavanaugh and was basically unanimous with one small exception that we will note. The Supreme Court noted that defendants in these cases had multiple felony convictions and that it is basically okay to presume that individuals with multiple felony convictions know that they have those felony convictions. And so it said unless a defendant can make an adequate showing on appeal that he would have presented evidence in the district court that he did not in fact know that he was a felon when

he possessed the firearm, the plain error standard just isn't satisfied. And the court cites pages from the transcript from the argument that the court says show that defendant could indeed make such a showing. But I'm not totally sure that all of the citations actually really show that defendants could or how defendants could point to evidence that they didn't know they had qualifying felony convictions. So one of the citations is just to Justice Breyer asking questions about whether defendants could do this and when they could do this. So why don't we play that clip here? One quick question. It seems to favor you, but you're going to hear a rebuttal. So, I mean, look, there is an error, OK, at the trial.

It seems like it's absolutely harmless. It had to do with what the weather was like on a certain day. Was it raining? And the defendant was walking out in the middle of it and would have known, you know? I mean, okay. But actually, there is a defense, you know, and it has to do with that. The defense is it's something that's not in the record. Is there anything to prevent the defendant from telling the Court of Appeals that? I mean, what's in the brief? And if they don't hear about it until your brief, which came later, I mean, they're the appellants. Yours comes later, so then they file a reply brief. They don't have to, the Court of Appeals doesn't have to make any finding, does it?

I mean, it just has to send it back. Am I right or wrong about that? I wasn't a trial judge, but I was an appeals court judge. If I'm understanding the question correctly, Your Honor, we are fine with a rule that says that the defendant... No, I want to know how it works. I mean, I would have thought, trying to remember, that if the appellant, who was the defendant, had some extra evidence that they didn't put in because of the error, they would tell the appeals court that and indeed

describe it. And if they didn't find out about it until late in the appeal, they'd file an extra brief. Am I right about that? Yes, you're right about that, Your Honor. Some of the other portions of the transcript that Justice Kavanaugh cited to do come closer to establishing that defendants on appeal could introduce possibly new evidence that they didn't know that they had qualified felony convictions. So the assistance to the Solicitor General noted a rule that allows people to introduce evidence that was omitted in error below. But again, like some of the citations just aren't super relevant to the question of how defendants could make a showing that there's a reasonable probability that they didn't know they had a qualifying conviction so another citation is to justice barrett positing that at a minimum the court can consider the precense report as evidence that defendant did know they had a qualifying felony conviction but that doesn't show how the defendant could introduce evidence

showing that they didn't know they did so it's you know, this sounds like nitpicky, but it was a little bit weird for the court just to declare that obviously this could happen, cite the transcript, and then the transcript is basically the justices questioning whether this could happen. So Justice Sotomayor concurred in part and dissented in part. She noted that the court's analysis here doesn't apply to harmless error cases when defendants raise that objection in district court. And she underscored that the substantial rights, reasonable probability, plain error standard incorporated the fact that it is the government's burden to prove the elements of an offense beyond a reasonable doubt, including that a defendant

knew they had a felony conviction. Kind of a noteworthy acknowledgement from someone who spent part of her career as a prosecutor where she bore the burden to prove these elements. And then it's also worth noting that it is a partial dissent because she would not have decided whether Mr. Gary, who was the defendant in the companion case, failed to show that his substantial rights were affected and would have instead remanded the case to the Court of Appeals to make that case-specific determination under the proper standard. And here, the Fourth Circuit had held that Rahaf errors automatically satisfied plain error review. The other case we got was Terry v. United States, an important First Step Act sentencing case that Leah is all over. So Leah,

do you want to walk us through Terry? Sure. So this is the First Step Act sentencing case that Leah is all over. So Leah, do you want to walk us through, Terry? Sure. So this is the First Step Act case argued extra late in the April sitting after the Biden administration changed positions. And the issue in the case is whether persons convicted of crack cocaine offenses under Section 841, subsection C, which criminalizes the possession of an unspecified amount of cocaine, are eligible to be resentenced under the First Step Act. So Justice Thomas writes for unanimous court that people convicted under Section C, that's of 21 U.S.C. Section 841, are not eligible to be resentenced under the First Step Act. The Biden administration had agreed with the defendant that Section C offenders were

eligible to be resentenced. And the court, as we have discussed, appointed Adam Mortara as amicus to argue that they were not. And as seemed pretty clear coming out of the argument, the court, as we have discussed, appointed Adam Mortara as amicus to argue that they were not. And as seemed pretty clear coming out of the argument, the court agreed with the court appointed amicus's position that 841C offenders are not eligible for resentencing. So there's some background both to the case and the statute that's relevant to the majority's reasoning and is a point of contention between the majority and Justice Sotomayor here. So first, the case relates to the 100 to 1 crack cocaine ratio disparity in the Anti-Drug Abuse Act, which basically says that the minimum quantity of crack or cocaine that triggered certain penalties or mandatory minimums differed substantially, dramatically even, between crack and powder cocaine. The Fair Sentencing Act of 2010 reduced that disparity from 100 to 1 to 18 to 1 by altering the minimum quantities that

trigger certain penalties and mandatory minimums for cocaine offenses. And then the First Step Act of 2018 provided for some resentencings, including for people sentenced under the pre-Fair Sentencing Act provisions. So Section 404B of the First Step Act provides that a court that imposed a sentence for a covered offense may impose a reduced sentence as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed. And then Section 404A defines a covered offense to mean a violation of the federal criminal statute, the statutory penalties for which were modified by Section 2 or 3 of the Fair Sentencing Act of 2010. That was committed before August 3, 2010. So everyone agrees that people convicted under 841A and 841B,

which establish a mandatory minimum of 10 and 5 years respectively for possessing certain levels of crack or cocaine, could be resentenced. And so what the court does in Terry is it interprets the covered offense language that Melissa read, and specifically violation of a federal criminal statute to mean the elements of an offense. And it says that the First Step Act allows people to be resentenced if the elements of their offense that they were convicted of had been changed by the Fair Sentencing Act. And that's true for 841A and 841B offenders. The minimum quantity of drugs that subjects them to a mandatory minimum had changed, and that quantity is an element of the offense

that the government has to prove the defendant possessed. but that's not true for 841C offenders. The elements of their offense, possessing an unspecified amount of crack cocaine, remain the same. The opinion is unanimous, but Justice Sotomayor concurred to criticize Justice Thomas's, quote, unnecessary, incomplete, and sanitized history of the 100 to 1 ratio. And included in that disagreement, there was this interesting exchange between the majority, which again, Justice Thomas wrote, and Justice Sotomayor, about whether Black communities in particular had supported the crack cocaine penalties. So in a footnote, Justice Thomas's majority says that many Black leaders in that era professed concern about crack and cites the president of an NAACP chapter in the D.C. region, also cites, you know, a D.C.

council member who spearheaded an effort to create mandatory minimum penalties. Justice Sotomayor responds that the help that, you know, Black political leaders and Black citizens requested never arrived, just leaving kind of the tough on crime laws rather than the help that, you know, Black political leaders and Black citizens requested never arrived, just leaving kind of the tough on crime laws rather than the holistic approach, you know, the Black community sought to address the crack cocaine crisis. And, you know, I think it's an interesting point of disagreement because on one hand, it's not clear why Justice Thomas kind of had to go out his way to note that black community is supported. This is straight out of the box versus Planned Parenthood playbook. Again, I cannot emphasize this enough, totally different

cases, the complete resurfacing of an alternative but racialized history. And so Justice Thomas is citing to James Forman's Pulitzer Prize winning book, Locking Up Our Own, and noting that it is true that D.C. council members and even the mayor of D.C. at the time, they were in favor of these increased sentences because they were worried about public safety. D.C. is a majority minority city and was at the time, and they were concerned about the black community more broadly. But they also asked for serious reinvestment from the federal government in D.C., and that is the part that Justice Thomas completely neglects. And again, the history that he acknowledged and surfaced in his box concurrence was partly true, but largely incomplete. So this is kind of like a weird sort of rehashing of that

whole move. And, you know, I don't know why he's engaged in this kind of law office history, but it would be great if he would continue reading the books and add more of that in. Yeah, so for readers who are interested in this, it is obviously worth checking out the materials that both the majority and the Sotomayor opinion rely on, in particular, James Forman's book, Locking Up Our Own. Elizabeth Hinton and others have also written about this, including an op-ed that Hinton wrote with Julie Lee Kohler-Hausman and Vesla Weaver. And I think it may be worth excerpting a little bit of that op-ed. So they write, look, there's no question that by the early 1990s, blacks wanted an immediate response to the crime,

violence, and drug markets in their communities. But even at the time, many were asking for something different from the crime bill. Calls for tough sentencing and police protection were paired with calls for full employment, quality education, drug treatment, criticism of police brutality. It's not just that those demands were ignored completely. It's that some elements were elevated and others were diminished, what we call selective hearing. Policymakers pointed to black support for greater punishment and surveillance without recognizing accompanying demands to redirect power and economic resources to low-income minority communities. And so that's, I think, the history that Sotomayor rightly accuses Thomas of completely ignoring. And in addition, she calls him out for saying virtually nothing about the

wildly disparate racial impact of these enhanced sentences. So we have an examination of history that looks just at the history that precedes the adoption of this penalty scheme and selectively does so and then fails to actually grapple with what happens once these enhanced penalties with this radical disparity between crack and powder and a disparity that bears disproportionately on criminal defendants of color. And of course, like that was recognized in Congress, which took steps to try to ameliorate that disparity. But so I think Sotomayor correctly, and kind of efficiently calls him out for all of those omissions. Yeah, I mean, the lack of coverage of the redistributive part of that history is really

appalling, because it's a big part of both the Hinton book, both both the Hinton and Foreman books and this op ed that you've cited. And just to note, this is another example, I think, of the sniping in the footnotes that we've really seen over the last couple of weeks with these opinions. Like, you know, last week it was Kagan and Kavanaugh mixing it up. You know, here again in the footnotes, Sotomayor and Thomas. So, you know, to the extent that there is, I think, sort of a more assertive or aggressive posture, I mean, it seems like the gloves are really off. Yeah. And maybe just one final point to make about

the Sotomayor writing. She obviously correctly notes that the political branches are certainly able to address this gap in resentencing. She says the statute as written simply does not qualify individuals like Mr. Terry for resentencing, but that Congress could tomorrow fix that and should do so. Well, and that to me sort of, I think, speaks to the kind of, you know, forceful ascendancy of textualism. I mean, she notes that the purpose of the statute was to ameliorate some of this. And just the way it was written, that just didn't happen. And they're kind of bound by, like, now that they're all textualists, they're bound by this. And so this is an invitation and maybe some inner branch dialogue to correct what might have been just some sloppy drafting in the

statute itself. And just on the kind of rise of textualism, like this is an example where I think the expectation of Congress was that lower level offenders, in addition to the higher level offenders, you know, would get resentence. You know, it had this odd consequence where defendants who possessed, you know, greater amounts of crack cocaine could get resentence, whereas defendants who possessed lesser amounts could not. That is completely absent from the court's opinion. This is in some ways consistent with textualism, but that is not the approach that the court always takes, whether it's in cases like Bostock, where you get justices like Thomas or Alito or Kavanaugh saying, well, the expectations of Congress really matter. We've also seen that in decisions this last term. So on you know, on one hand, yes, you know, this is arguably an example of just an application

of textualism. On the other hand, it is, you know, another example of a selective application of that methodology. Yeah, absolutely. This season, this term, we have had occasion to talk a lot about statutory interpretation, you know, and some justices' fixation on textualism in terms of how it applies textualism or adheres to it. And so for that reason, we wanted to highlight a fascinating case that a listener drew our attention to that pointedly raises some of the kind of methodological questions about how best to interpret statutes that we have been kind of discussing all term. And this case comes from the Wisconsin Supreme Court, state courts, they're where it's at. So Melissa, do you want to describe James versus Heinrich? Sure. So James versus Heinrich, and there are some cases that were consolidated into this as well,

poses the question of whether local health officers have the authority to issue emergency orders closing schools for in-person instruction due to the coronavirus. The plaintiffs here challenged the order on the ground that it exceeded the officer's statutory authority and that it violated their rights to free exercise of religion and their rights to parental autonomy to bring their children up in the manner of their choosing, all protected under the Wisconsin state constitution. The Wisconsin Supreme Court, in an opinion by Justice Rebecca Bradley, held both that the officer lacked statutory authority to do this and that it violated plaintiffs'

free exercise rights under the state constitution. And both of these holdings prompted a vigorous dissent from Justice Rebecca Dallet on the Wisconsin Supreme Court, who was joined by Justices Jill Karofsky and Anne Bradley. So let's talk about the statutory interpretation piece. Okay, so let me maybe read briefly from the kind of key statute at issue, which empowers local health officials. Well, in what ways, I guess, is the question at the core of the case. So the statute basically says that every local health officer, upon the appearance of any communicable disease in his or her territory, shall immediately investigate all the circumstances, make a full report to the appropriate governing body, and also to the department.

The local health officer shall promptly take all measures necessary to prevent, suppress, and control communicable diseases and shall report, et cetera, et cetera. And then the local health officer may inspect schools and other public buildings within his or her jurisdiction as needed to determine whether the buildings are kept in a sanitary condition. And there's a separate subsection that says local health officials may do what is reasonable and necessary for the prevention and suppression of disease, may forbid public gatherings when deemed necessary to control outbreaks or epidemics, and shall advise the Department of Measures taken. Okay, so the Wisconsin Supreme Court majority opinion is kind of like a parody about how textualism works, right? So the court invokes the expressio unius est exclusio alterius canon, which basically says, you know, the inclusion or lists of some items implies the exclusion of other things not listed or expressly noted. So basically the court says, nowhere in the statute did the legislature

give local health officers the power to close schools. So because there is no explicit grant of the power to do that particular thing to close schools, the court concludes that the power does not rest with these local health officials, regardless of the breadth of the language that does empower local health officials to do what is reasonable and necessary for the prevention and suppression of disease.

So that's true about any discrete act that a health official might take pursuant to this broad grant of statutory authority and without seeming to acknowledge the absurdity of resting so dramatically, not exclusively, but largely on this expressio unius canon, the majority basically says, well, the words closed schools aren't in the statute. So the power doesn't exist. It's pretty wild. But the statute has a catch-all clause. Oh, yeah. That's expressly contemplating this kind of argument. Yeah. Yeah. Like a broad grant of authority that doesn't include a specific list obviates the need for a specific list. Right. It's a reason why you don't read the specific list to exclude all other do you think that's right? The catch-all clause says local health officers may do what is reasonable and necessary for the prevention and suppression

of disease, which might mean a wealth of things, including but not limited to the closing of schools or anything else that is unenumerated. Right. It's not clear to me how this logic doesn't apply to any particular act the health official wants to take. Like vaccinations? Because none of them or anything, like literally none of them are explicitly listed. It's just a broad grant of power. So I think by extension, like no specific acts can be taken pursuant to the broad grant of power. So it's pretty nuts. And the opinion relies heavily also to the point of farce, I would say,

on Scalia and Garner's reading law, which is a treatise, right? Like a, you know, sort of textualist tome. But it's like elevated to this kind of quasi-constitutional status, as far as I can tell. I mean, it is just cited like repeatedly and as something that sounds kind of like law. Yeah, and like also in the most pompous ways. So they like describe the book, which admittedly describes itself this way as including in their treatise only those venerable canons representing, quote, what the best legal thinkers have said for centuries. It's just like, why would you describe your work that way? It's just... Well, textualism just doesn centuries. It's just like, why would you describe your work that way? It's just... Well, textualism just doesn't. It's just the most immodest method, right? That's true.

It goes with the terrain. And the opinion invokes the whole code rule to note that another statute gave the Department of Health Services the specific power to close schools. And because this particular statute in question did not have that phrase, there is no authority given to the department to close the schools in this case. So no power for you because it doesn't say so. And other statutes explicitly did this. And there are lots of other peons to textualism here. So ladies, I think we have to get R Regé-Jean ready for some artistic interpretation going forward. So here's one.

Cue music. As recognized since the founding of our nation, it is no more the court's function to revise by subtraction than by addition. I think Regé-Je John would have really killed that. He would have crushed it. You did quite well. I know, but I mean, like, he would have smoldered while he did it. I mean, I might get some kindling going, but not like him. That would have set this on fire.

And, like, the application of the whole code rule there is just also it makes such little sense because the grant of authority is to the statewide department of health services office whereas the statute they're construing is about local officials and there's just no reason to think that like one implies the exclusion of the other it It's just, it's again a mess anyways. And the dissent has something to say about this. It's almost like a rare time where you get some real big progressive energy on the methods point. So we've talked a lot about how Justice Keegan has kind of assumed the textualist mantle rather than challenging the hegemony of textualism. And that's, you know, one move. And

like, she's really great at that. But this dissent focuses more on textualism's claims to primacy and objectivity. And that's a fight that I think is worth having, too. So the dissent is authored by Justice Rebecca Dallet. And it first talks about, you know, the method of textualism. And it makes a point that we were just kind of alluding to, which is to start with the obvious, Scalia and Garner's book is not the law. You know, it's astonishing that this is a point that is worth making, right? But it is, you know, given the degree to which textualists are just like, this is, you know, the canon of textualism. And, you know, we saw this in Bostock with the justices fighting over, well, which opinion would Justice Scalia have joined? That's how we know who the true textualist is. And I think it's good just calling out like the absurdity of this, particularly given that,

you know, as Justice Dallet notes, the Scalia-Garner book conflicts with some of the Wisconsin Supreme Court's own precedent on statutory interpretation. You know, she also goes on to say, even when interpretive tools are relevant or helpful, they are not gospel. Like, again, I think this is really great language because it calls to mind, again, like the obsessive fetishization of the Scalia and Garner book, you know, goes on to suggest that legislative drafters, you know, have no idea about what the interpretive canons are based on, you know, empirical work about how legislatures work. And then I think what is in some ways like the most fun part of the opinion shows how all of these methods and canons are kind of like misused in the majority opinion.

So we've talked a little bit about the absurdity of expressio unius. But then she notes that the general principle that a specific provision controls over a broader one is misapplied because that only applies when necessary to harmonize two conflicting statutes. And as we were just saying, there's no conflict between both statewide offices and local public health officers having the authority to close public schools in order to prevent the spread of disease. She also notes that the majority invokes surplusage, noting that, well, the specific list of the public health officials' activities would be unnecessary if you read the general grant to contain that authority and she's like well you just rendered the general grant of authority

complete surplusage so you know that's not exactly supporting your argument either um and just just on this list point like the the list point drives me insane because the power to inspect schools is only given to the local officer to ensure the schools are in sanitary conditions. It's not given to them to actually prevent the spread of communicable disease. So saying the grant of that one authority excludes the power to close schools or like any power over schools in order to prevent the spread of disease, it's just like, did you read this? I can't tell. I cannot tell from your opinion. So beyond the rejoinders to the various canons that the majority uses, the dissent pretty vigorously contests the majority's reading of the statute, in part based on legislative history and

statutory history, which the majority does spend some time on, right? So the majority is not exclusively focused on text, does look at the background of the statute and even the circumstances surrounding its adoption, I think that Scalia and Garner would really disapprove. That means it's illegal because that's the law. So the dissent notes that in the aftermath of the Spanish flu outbreak, the Wisconsin legislature expanded the authority from what was needful and proper to what is reasonable and necessary, notes that at least three statutes and one administrative code provision recognize that local health officers' orders may close schools, right? So other provisions of law that presume this authority exists, right? That's quite relevant.

And I, you know, the majority sort of at one point says, well, we're not, the dissent doesn't really develop these arguments very much. So we're not even going to bother responding to them, which I feel is kind of a tell. Again, I think it's also a rejoinder to the sort of whole code reading. Like, I mean, if you're going to look at all the codes, look at all of the codes. And there are these other statutory provisions that do reference this kind of authority. And to be clear, the dissent's rejoinder to the majority had the majority feeling some kind of way because the majority responded with this, what can only be characterized as a name-calling footnote, right? So here's a quote. Judges who reject this textually grounded method of decision making refuse to yield the ancient judicial prerogative of making the law, improvising on the text to produce what they deem socially desirable results.

Quoted from Scalia and Garner reading law, which is really like a Bible at this point for this opinion. That's why it's so good that she accused them of treating it like gospel. It goes on to say that Justice Dallet disparages these canons because they interfere with her desired results, so activist judges going to activate. Contrary to Justice Dallet's policy-focused approach, judicial activism, the canons serve as helpful, neutral guides. And then it follows up with Justice Dallet distorts the words of textualists to support her rejection of the fair

reading method of statutory interpretation. So, I mean, the underscore of all of this is that activist judges are going to do activist stuff and all to achieve their desired ends, which is to close schools, take your freedom, and have your kids in your home with you. And to be clear, I get the anxiety about having to close schools, but I also do not want to have another 15 months of living with COVID. So I'm okay with it, despite my PTSD over this last year. Also, could these textualists just come up with some new comebacks, right? Or like some new jibes, like these whole, I don't know.

It's almost as though they were like given a playbook of things to call other judges who disagree with them. Yeah, almost. Almost. And we didn't even talk about the completely unnecessary half of the opinion that reaches the constitutional question despite finding this closure order. They're like, yeah, we've invalidated the order on statutory grounds. You know what we should do next?

We're not activists, though. We're not activists, and so we'll go ahead and invalidate it on constitutional grounds, too. Let's do it and be legends. What is judicial minimalism? If not a decision striking down something and then saying, I will go further. Right.

Good times. Look it up. Good times. Just doing law. Just reading law. Right. Just reading law. Just reading law. Right. Just reading law. My bad.

Speaking of judges just doing law or acting as if that is all that is happening, we wanted to have a short additional court culture segment just in case anyone whose name rhymes with Stephen Breyer is listening at this point in the show. And we specifically wanted to flag that on Hugh Hewitt's show, Senate Minority Leader Mitch McConnell says it's, quote, highly unlikely he would allow Joe Biden to fill a Supreme Court vacancy in 2024 if he becomes Senate majority leader. He also was unwilling to commit to allowing a vote on a nominee if a seat opened in 2023. But what happens if a seat opens as early voting begins in the election, maybe around September of the election year? Would that be okay? Quote, we'd have to wait and see what happens. Like, you know, the point is, is like, you know, people, people, Steve, need to take seriously the prospect that a Republican controlled Senate under Mitch McConnell would not confirm a Democratic president's Supreme Court nominee. Like, they are saying this. And, you know, so I don't take that as just like wild speculation, horror stories. Like this is like, they're just coming

out and saying it. The point is, the time is now. The time is in the next couple of weeks, right? When there is the thinnest of Democratic majorities in the Senate. And who knows, like things can happen, right? That majority is not a sizable enough one for Justice Breyer to sort of take his time this summer, think it over, travel, return. You said pot roast, but I thought it was like a hot justice summer that you were going to, I heard hot and not pot, and I wasn't sure where you were going with it. Yeah, I mean, he can have, I want it was like a hot justice summer that you were gonna i heard i heard hot and not pot and i wasn't sure where you were going with it yeah i mean he can have i want him to have a hot justice summer but i want him to have it after his announcement anyway it's the middle of june there are a few weeks remaining like i think hope springs eternal that that we will have

an announcement from him by the time the court is done for the term but um we are bringing some justice briar level optimism optimism right Well, that's my role. Right. But obviously, just, you know, the stakes of delay are getting clearer and clearer. On that inspiring note, I just want to wish all of the students at NYU and Michigan and Cardozo and all of the law schools everywhere who are now in the clerkship hunt because clerkship season has officially started. So good luck to all the students. Thank you to all of the judges who have agreed to abide by the hiring plan to impose some boundaries on what has often been a pretty unstructured process. The professors appreciate it. I know the students

appreciate it. And to those of you who are in the hunt, stay sane, stay calm. And we are thinking of you and hoping that all of this works out. May the odds be ever in your favor. So that's all for today. Thank you so much to Catherine Fink, who is substituting in for Melody Rowell as Melody is celebrating her birthday. Thanks to Eddie Cooper, who makes our music. Thanks to all of you for supporting and listening to the show. You can support the show at glow.fm forward slash strict scrutiny. Give Melody a birthday present by supporting and subscribing to the show via Glow. Thanks to our summer intern, Liam Bendixson, who's been helping us with some research for

these shows and some future ones. And thanks to the Wisconsin Supreme Court for bringing that big progressive energy to the Textualist rodeo.