Strict Scrutiny - Stay Frustrated

Episode Date: May 4, 2020

Kate and Melissa are joined by special guest Emily Bazelon to talk about her New York Times Magazine article, “How Will Trump’s Supreme Court Remake America?” Plus, we've got opinions that offer some hints to what future cases might me on the justices' minds. 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. I'm Melissa Murray. And I'm Kate Shaw. And we're your hosts for today's special episode.

The pandemic has given us lots of time to reflect upon lots of things. My love of elastic waist pants, my newfound love for carbohydrates. But it also gives us a time to reflect upon the shifts in the Supreme Court, and particularly its drift to the right over the last decade. And we're not alone in pondering the shift. And today, we are joined in the virtual studio by Emily Bazelon. Emily is a staff writer for the New York Times Magazine, a senior research fellow at Yale Law School, from which she graduated in 2000, and the co-host of the Slate podcast, Political Gab Fest. So welcome, Emily. Thank you. Thanks so much for having me. You left out, of course, that we were at law school at the same time, Melissa. And I sat next to you and your very adorable baby that you let me hold once when you had to run to

the restroom. And now he is a giant 20-year-old. Yes, and an elected official in New Haven. It's true. Yeah, on our city council. Exactly. The board of alders, as we call it. I love it. So Emily, back in the end of February, this is, I guess, what we are now calling the before time. You wrote a fantastic cover story for the New York Times Magazine titled, How Will Trump's Supreme Court Remake America? And so we want to spend some time talking about that piece, which is actually a very good refresher or primer on some of the big cases that we are either waiting for or just reflecting on as the court moves into the part of the term where it begins issuing more opinions in a sort of fast

and furious fashion. So we are going to get to Emily's piece and to sort of all the really fascinating issues that it surfaces. But we are going to start like we typically do with some breaking news out of the court. So we'll do that first. Then we'll move on to talking about Emily's piece and kind of how it connects to both the current Supreme Court term and the trajectory. It looks like the court may be on. And then we'll do a little bit of previewing of the oral arguments the court will begin hearing. Actually, today, if you're listening to the show,

the day that this episode is scheduled to drop, which is May 4th, arguments, the first ever telephonic arguments the court is hearing, will begin today. We'll talk a little bit about that and we'll finish with a little bit of court culture. But let's start, why don't we, with some breaking news. So we are recording on April 27th and this morning we actually got three new opinions out of the court. We wanted to talk briefly about all three of them. The first one is actually a case that we have spent a good amount of time previewing on this podcast, NYSERPA. That's the New York State Gun Case. And at issue in that case was a New York City

gun regulation that prevented gun owners from transporting their firearms to places like second homes and firing ranges. And the kind of interesting wrinkle in this case is that last summer, before the case was argued before the Supreme Court, New York actually repealed the regulation at issue and the New York State Legislature passed a law that enshrined the protections that the plaintiffs in this case had sought. So as we made clear every time we talked about the case, the case seemed pretty clearly to us to be moot, which means there's no live dispute for the justices to resolve. But the fact that the court declined to dismiss the case after having granted it, despite a suggestion that it do so, gave us some clue that at least

some of the justices weren't totally convinced that the case was moot and that maybe some of them wanted to actually, you know, take the case or hear the case and decide the substance of the Second Amendment question. So we were vindicated. The court did, in fact, dismiss the case as moot in a short, actually per curiam, two-page opinion. But, you know, a couple of interesting things. He agreed with this mootness determination, but he was clearly sympathetic to the view that the court has under-enforced the Second Amendment in the dozen years since the D.C. v. Heller case and sort of encouraged the court to take up another Second Amendment case swiftly. And then maybe the most interesting thing in the case is this spitting mad dissent that Justice Alito writes. He is joined by Justice Gorsuch and for most of the dissent by Justice Thomas. And he basically accuses New York of trying to manipulate the court's docket and suggest that because there's like some jump in there. Yeah. Is he wrong?

No, he's right. New York did try to kick this case right out of the court. But I mean, this no longer wished to have on the books. Like, it has every right to remedy that. It doesn't have to wait for the court to make that determination. So there's something. So I think I said this when we previewed the case. Like, there's just something that there's such a sort of judicial supremacist tenor to that criticism. Like, only courts can remedy constitutional defects. Cities can do it. States can do it.

And, of course, the timing was no accident, right? And Alito says, look, they vigorously defended this law below. So at some point they thought it was constitutional or at least constitutionally defensible. But it just seems crazy to take such aim at another, you know, constitutional actor that has made a determination, and that is to repeal a law.

And so, you know, he suggests there's something like unfair or it's cheating, and that just seems wrong. So I kind of took the whole crux of the discussion about mootness from Justice Alito to be sort of what he viewed as a manipulation of the voluntary cessation doctrine. So this is an exception to mootness and that New York was using this instrumentally, recognizing that the personnel of the court had changed and that they might not get a hospitable reception at the court as it is presently constituted. But by the same token, there's a weird kind of whataboutism about

this opinion that I just find really interesting. And it so mirrors the whataboutism he had going on in oral argument where it was, you know, what about if you stop for the bathroom? What about if you stop here and you pick up your mother? Like lots of what about isms. I mean, Melissa, you're obviously giving a cogent legal analysis. The politics here, of course, is that when you have a highly charged issue, like are the states properly enforcing the new exciting Second Amendment that Heller gave us 10 years ago, right, where for the first time in American history, the Second Amendment protects an individual right to bear arms. That's like a big deal for conservatives. And they took a long time to tee up this case. For years, Justice Kennedy seemed to be blocking review of additional state laws. Justice Thomas has complained about that in the past.

So has Gorsuch. I think Alito maybe a little bit, too. And so for them, this is enormously frustrating. They finally have what looks like a really stupid law to challenge, right, to get rid of. This was a law in which New York was saying to people who are registered gun owners, you can't travel outside of the city to a shooting range. Like, that's exactly the kind of regulation that libertarians don't like. And so to have it kind of snatched away from them, because the state and the city were like, oh, you know what, no thanks, we don't want to have to defend this. Like that's super frustrating in just like real politic terms. Well, stay frustrated because

that's what happened. Can I flag one thing from the Alito dissent that I thought? I mean, there's so many things, you know, there are like pages that are totally gratuitous that criticize the premise licensing scheme that the gun owners in New York had already had to kind of navigate in order to get the premise licenses. The scheme is not in question at all in this case, right? These people already have licenses and it's just about these restrictions on where you could take your gun. But he's just so offended that New York makes it hard to get a license at all and it's expensive and it can, you know, after three years you have to renew it. But there's this example in The Descent in which he says, take this example. A state enacts a law providing that any woman

wishing to obtain an abortion must submit certification from five doctors that the procedure is medically necessary. So she sues. She claims this requirement is unconstitutional. The state replaces its old law with a new one requiring certification by three physicians. Would the court be required to dismiss the woman's suit? And it's like, obviously Alita would say yes. Clearly. And that's just like stopping for a cup of coffee. Is he trolling us? Exactly.

I mean, we should, I guess the one other thing to say about this case is like, make no mistake, this is a small bump on the road to expanding Second Amendment rights in the country. Another state and another conservative legal group will soon enough tee up the next case. And you can tell from Kavanaugh's concurrence that, unlike Justice Kennedy, who he replaced, he's very much on board for that next challenge. Another case that came down this morning is Maine Community Health Options versus the United States, which is another one of those Affordable Care Act risk corridor cases. This was an eight to one opinion by Justice Sotomayor, where the court found that the federal

government was required to make payments to insurance companies who'd claimed that they'd relied on guarantees in the Affordable Care Act that the federal government would provide assistance to the tune of up to $12 billion to offset the losses they incurred from insuring a lot of additional people during the first few years that the ACA was in effect. So that opinion came out this morning. It is one of many ACA-adjacent cases that we are going to hear this term,

and we'll highlight another one later in the episode as well. And I do think when we previewed that case, which was pretty masterfully briefed and argued by Paul Clement, representing the insurance companies, I think we predicted unanimous or near unanimous victory there. So, you know, we don't do that many predictions, but I feel like we were pretty vindicated in these two cases. And the last one that we got today was Georgia versus publicresource.org, in which this kind of unusual lineup finds that annotations contained in Georgia's official annotated code cannot be copyrighted because they are subject to the government edicts doctrine. And here's a lineup.

So the majority is the Chief Justice, joined by Sotomayor, Kagan, Gorsuch, and Kavanaugh. And in dissent, Thomas, joined by Alito, Breyer, and Ginsburg. So, you know, I think we always like that when they mix it up. I'll just note, I actually discussed this case on an earlier episode and the episode was too long and we had to cut it. Tragic. It was tragic. I actually think this was a really interesting case. It came to my attention. I sort of was like, okay, it's a copyright case, whatever.

Our law librarian at NYU was like, this is the most important case of the term. And when you think about it, you know, you can see why the whole question of, you know, what counts as government work product versus what kind of additions you can make to existing government work product that takes it outside of the government edicts doctrine is a really interesting question, certainly for those who purchase materials that are annotated or distribute them in other ways. So I was really glad to see this case come down. I think Jamie was the one who in a previous episode said that, you know, Justice Thomas gets a lot of the copyright cases or the intellectual property cases

because they're sort of just straightforward applications of statutory law or in some cases constitutional law, and you just don't have a lot of room to mess with them. Interestingly, Thomas writes the dissent for four, but I saw some speculation that potentially, based on the opinion assignments from that sitting, maybe he lost the majority. Like he had the majority, he lost it to the chief. I think he actually had the majority

and something happened to where the chief peeled off and joined Sotomayor, Kagan, Gorsuch, and Kavanaugh. But again, a really an odd lineup. I thought it was interesting that Breyer, the former copyright professor, went with the dissent here. And again, I think that's more fodder for the theory that the dissent was actually the majority. So I think that's all the opinions we're going to have this week. So we're going to have to wait until next week to get more opinions in addition to the first round of oral arguments, telephonic oral arguments, that is. But the one other development that we wanted to flag was that the court today ordered supplemental briefing in two of the cases involving the president's financial records. So those are all scheduled for argument on May 12th.

And two of the cases involve congressional committee subpoenas for financial records. One is a grand jury subpoena out of New York. And the order today just addressed the two congressional subpoena cases, basically asking the parties to address whether the political question doctrine applies to the cases. So whether a court should essentially stay out of the fight over these subpoenas because they present fundamentally political disputes between the political branches in which the court should stay its hand. So that's interesting. What was your reaction to that order? So for people who are not lawyers and are listening anyway, it's not the idea that something is political in nature,

but the idea that the Constitution specifically commits resolution of this issue to one of the political branches, either the executive or Congress. And for that reason, it is not a question for the judiciary, a legal question for the judiciary. And, you know, I thought this was interesting. I think we're actually seeing a kind of, I don't know, reinvigorated political question doctrine. Like, you know, this was the basis on which Russo was decided last term. It's getting, I think it's just really interesting sort of what you assume has been committed to Congress or the president and what hasn't. If it is the case that this is a non-justiciable political question, I don't know that it's great for the president, because if this is something that has been left to the political branches to resolve,

then it seems like Congress can then enforce its subpoena power to get these documents or like requesting them, they have to give them. But how, Melissa? I mean, that's a problem, right? Like technically Congress has subpoena power. Put them in jail. Yeah, you're gonna call out the Sergeant of Arms to go.

I think, doesn't Josh Chaffetz say we should be getting- Josh Chaffetz says let's do it, But nobody has for like many, many decades. And it. But you would love to see it, wouldn't it? I mean, I think, is that what it comes to? Is that what it comes down to? Here's why I think, actually, I think I agree with you, Melissa, that this isn't necessarily great news for the president. I think that if the subpoena that the committees had issued had been subpoenas to some executive branch entity, then I think the if the subpoena that the committees had issued had been subpoenas to some

executive branch entity, then I think the court staying out means the executive branch functionally wins because it just will tell Congress to take a hike if there's no court to enforce a subpoena. Here, though, these subpoenas were to these financial institutions, third parties, and at least early in the litigation, Mazars. So it's Mazars, Deutsche Bank. I think there are actually a couple of other entities. It's like the accounting firm and the banks for the half-trump tax returns. No, they have to. Don't they just have to comply? Well, Mazars early in the litigation said it stood ready and willing to comply with a subpoena. It's just that Trump then intervened to ask courts to assist him in resisting or, I guess, forcing these third parties to resist compliance. But if it's the case

that the White House or the president, rather, cannot press courts into service to protect him from this disclosure, I think then these third parties, at least Mazars has said, it will comply. And think about it. These financial institutions, I think, do want to maintain good relations with these congressional committees, their oversight committees, their appropriators, right? They have every reason to want to stay on the good side of these committees if they don't have some legal cover to evade compliance with these subpoenas. And so I think now you don't really want this kind of high stakes matter to sort of rise or fall on the kind of, you know, discretion or good faith of one of these banks. And yet, I think it is the case or the signals so far have been that they will comply if there's no court telling them not

to. And so I think that if the political question, if the court did decide to punt and find a political question here, I do think that probably at least some of these records do end up seeing the light of day. Well, you just said the main thing. I mean, the institution that has the most to benefit from this being a political question is the court, right? Which doesn't have to decide what is not just political in the ordinary sense, but highly controversial during the middle of what will be an election cycle by the time this opinion is actually issued, right?

So to me, this seems like the request for supplemental briefing is building an off-ramp to get the court out of this. But is that really a good outcome, democracy speaking? I mean, you know, there's this case, and Kate, I like that point you're making about these third-party institutions and the idea that maybe Congress could send

a sergeant of arms over to Mazars or Deutsche Bank, and they'd be like, okay. But that is a pretty unused, kind of long, untested method. And also, what about future cases? I mean, once the political question doctrine is locked in, there are other ways in which Trump or another president is going to spar with Congress. And if that is a direct clash and the court has then taken itself out of resolving it, then if you are not a big fan of untrammeled executive power, we have taken a step away from United States versus Nixon, which is the really important 60s era precedent that I at least care about protecting because it says that rule of law applies to the presidency. Well, don't you think you could distinguish it on the whole idea of

like executive branch versus these third parties? I think that'd be the way you would distinguish it and it still keeps mixing alive. Right, except wouldn't you be worried like if this is political question doctrine and it's just the accountant and the bank, like all the more it's political question doctrine if it's the Congress versus the president? Well, I think this whole conversation is basically teeing up Emily's piece for us to talk about. I mean, it's a really good question. What do you do with an older precedent like United States versus Nixon? I mean, I just, I mean, I think it's, it's really interesting, like where the court sits in all of this. I do think this is creating an off-ramp.

It's expedient for the court, but is it good for the work that the court has to do? I think that's a really important question. I think that's a question that you're getting at in your New York Times piece. There are lots of things that the court is doing right now that may be expedient, may be politically expedient even, but perhaps are not good for the court as an institution. Yeah. Wait, and before we pivot, because I do want to pivot to Emily's piece in a second, but on the merits, I do think we should say explicitly what has been implicit, I think, in this exchange, which is that I certainly don't think there's a strong

argument that the political question doctrine bars judicial resolution of this dispute. It seems plainly appropriate for judicial attention. To Melissa's earlier point, you know, not all political cases present political questions. The doctrine really is largely about assignment by the Constitution of some role or function to another branch of government apart from the courts. We don't have that here. Or, you know, the impossibility of determining workable standards. I don't think that argument is strong here. So none of the indicia of a political question seem at all present here. And I think it's hard for me to see more than one or two or maybe three justices, you know, successfully marshalling an argument that this is the right

off ramp. So I think it's worth flagging and playing out what the consequences would be. But on the substance, I do not think there's a strong case to be made that this case presents a political question. So we will continue to monitor that very closely. OK, so this probably is a good place to pivot to sort of more explicitly addressing some of the really wonderful material in Emily's New York Times magazine cover story from late February, just before things really started to change, right? So the question that the piece poses is how the Roberts Court, and in particular, this new iteration of the Roberts Court with Trump's two appointees on board, might really change the country. So do you want to start with the gig, because we're giving us a high-level overview of what you were doing with the piece? Yeah. I mean, what I was really interested in was the kind of intellectual justifications or backbone for what feels like a push of some of the conservative justices, in particular Gorsuch and Alito and Thomas, to really move the court quite quickly in a strongly conservative direction on several fronts. And the gun case we

were talking about earlier is a good illustration of a certain sense of impatience, right? And you can also see it in other areas of law, too. So I was honestly just curious about the sort of current state of what's called originalism. This has been since the 80s, a or the main conservative body of thought that gives a kind of intellectual justification for reaching what tend to be conservative results. But what originalists care very deeply about is the premise that this is a neutral method, that all you're doing is you're going back, you're reading the text of the Constitution very closely. You're thinking about what is now called the original public meaning of those words. And that dictates the result.

And so Gorsuch in particular has said things like this is, you know, there's no reason to ever deviate from this method. It is sort of all knowing and it's determinative. It gives us one right answer. And that's why it's superior. It allows conservative judges to take their values and moral ideas out of the courtroom and out of judging, which has been a kind of conservative brass ring to strive for for a long time. And what I found in looking back at the history of originalism, which kind of as a full-blown theory really dates from the 1980s, is that it has really shapeshifted since then. It's sort of like every time it gets pinned down in the sand by the critics, it turns into something else. And to some degree, I mean, this is a familiar phenomenon in theory in general and legal theory in particular that

there's a criticism and it's quite incisive. And so then the theory kind of gets bigger to encompass it and as a result also gets mushier and isn't really determinative anymore. So I was trying to trace that development, which I thought I could see happening, and then also think about whether originalism is really the way that the United States Supreme Court has been interpreting the Constitution implicitly since the founding. And I think the answer to that question is pretty resoundingly no. And that was something that I had to like teach myself a lot of law and scholarship to understand. But it was really fascinating to me once I kind of got into the weeds of it. So one of the cases that you highlight as sort of, you know, originalism is kind of a Johnny come lately to the court's interpretive efforts is McCulloch versus Maryland, which is a case from, you know, it's the early Marshall Court.

I think it's an 1808 decision or something. It's back there. It's back there. And so this is the famous case. It's a sort of chestnut in constitutional law about the founding of the Bank of the United States and whether Congress was authorized to establish a bank. And, you know, Marshall then sort of says, yes, it does have this authority. It's not explicitly enumerated, but then you have this necessary and proper clause. And if Congress has the power to tax and coin money,

then a bank would be necessary and proper to do all of that. And more particularly, he notes, we can't interpret this constitution as though it were a code. It's, you know, it's spare and it's gestured toward lots of different ideas, but it is not specifically enumerating everything. Like some kind of interpretive exercise is necessary and practicality and pragmatism is necessary to do it.

And McCulloch versus Maryland, I think, is a very pragmatic opinion. You know, I think a quite elastic understanding of the text of the necessary and proper clause. But again, just sort of like, yeah, this seems to work. This is adjunct to coining money, to doing all of these things. And, you know, it's a constitution we are expounding here and, you know, not a code. And I just don't understand how we've lost that and why this idea that interpretation, pragmatism is somehow akin to activism. Yeah, it's actually from 1890 in that case, just because I got it wrong. Thank you. And there's this awesome quote in it, I thought, where Chief Justice Marshall says, quote, such as the character of human

language that no word conveys to the mind in all situations one single definite idea, unquote. And, you know, look, when you're interpreting a super specific clause in the Constitution, like what's the date of the next presidential election, and it says the answer, that's one thing. But as you're, I think, getting at, there are many parts of the Constitution that are far more grand and capacious in general. And so when you have phrases like liberty and property and due process and equal protection of law, on which an enormous amount of law hangs, yes, I think the kind of methodology of McCullough is actually in a lot of ways very much with us, but has been kind of shamed in the same time, right? Because we associate it with various moves in the 20th century the court has made that conservatives in particular don't like.

Yeah, so you trace both in the article and in your description right now, Emily, some of these kind of this sort of shape-shifting tendency of originalism. So you mentioned original public meaning, right? When originalism first kind of burst onto the scene, it really seemed more interested in trying to kind of mine the intentions of the drafters of the Constitution. What did James Madison think when he drafted the Bill of Rights, things like that. And it shifted over the years into something that asks more about the common understanding, right, or accepted understanding of terms in the Constitution to individuals, you know, alive at the time, participants in the ratification conventions in the states, just sort of to ordinary people at the time, as opposed to this kind of more psychological exercise with respect to the drafters themselves.

But what I wanted to sort of to shift to, and this is the McCullough quote you read, this kind of more psychological exercise with respect to the drafters themselves. But what I wanted to sort of shift to, and the McCullough quote you read highlights this kind of indeterminacy of language or text so beautifully, because you spend a lot of time in the article also talking about textualism, right, which is a close cousin of originalism. And I think in some ways has shifted in many of the same ways that originalism has. You know, Elena Kagan, right, very famously has sort of announced we are all textualists now. And in some ways that I think is right and that everybody takes text seriously. But if that's the case, I'm not sure what textualism as a methodology means or stands for. But yeah, so do you want to talk a little bit about textualism, which, you know, is woven throughout the piece? And I think there's this great Don McGahn quote that

you offer, which is the sort of the two hallmarks of the Trump judicial appointees, right, are sort of, he says they can be summarized in two words, textualism and originalism, right? So that's what they seek in nominees to the courts and to the Supreme Court in particular. Right. So these theories are very useful politically because they continue to allow Republican officials like McGahn, like Glenn Leo from the Federalist Society, to claim that Republican appointed judges are doing something different from Democratic appointees. And again, that they're doing something that's superior because it's neutral. What I think you see with textualism, Kate, which you're really alluding to, is that, of course, everybody takes the word on the page who drafted and passed those words into law,

and whether you consider the consequences that a particular ruling is going to have. And so what I think you see, especially again from Justice Gorsuch, is this claim to be marching along according to the text without any of that context. And then a really fascinating counter-illustration from earlier in the term, the court was hearing the challenge to Title VII. These LGBT cases I'm sure you guys have talked about on previous episodes where gay and transgender plaintiffs who were fired from their jobs are saying, hey, I was fired because of sex. If you understand sex to encompass the whole of my life and sexuality, you'll see that biological sex, which is what the drafters of the Title VII had in mind, that's why I got fired. And so Gorsuch would sort of seem to be on the hook. And he acknowledged that in oral argument at one point. And then he asked this question about consequences

in this kind of revealing way in which he said, like, well, what about effectively, I'm paraphrasing, the massive social, like, upheaval that's going to happen if these gay and transgender plaintiffs win? Now, in fact, there is no massive social upheaval, particularly in the transgender realm. This has basically been the law for the last two decades. But whatever the sort of reality behind the question he was asking, he was revealing a lot of conservative anxiety, I think, about what it would mean to expand gay and transgender rights. And this is not what he was appointed to the court to do from the point of the view of the people who supported him. And so he, in my view, is kind of caught between a rock and a hard place here,

between his consistency of methodology and some of the values that he embodies and represents. And it's going to be really, really interesting to see where he comes down. Yeah, I don't yet know whether the questions that he asks at oral argument really reflect where he's going to come down on cases yet. We just haven't seen him in action for long enough to know. But I agree, that was one of the most interesting moments in the oral argument. And, you know, it does, it feels to me like he was conceding in the first half of that question that the plaintiffs on the text had an extremely compelling argument. And I do think that, again, my emerging sense of him, we haven't watched him for years the way we have all the others,

is that he, there's a certain kind of intellectual pride or vanity that he thinks that consistency confers. And I think that in a way, it would be very difficult for him, I think, having accepted the strength of the textual argument that these plaintiffs are bringing to rule any other way. So I think I continue to feel, as I did coming out of that argument, that there is a decent chance that he and, you know, maybe the chief justice, but at least Gorsuch, will find for those plaintiffs. And although I think there'll be a certain sense of betrayal on the sort of conservative, in the conservative elite world, I think there's all there also might be some sort of grudging admiration that could follow. If you think that the kind of methodologies, these interpretive methodologies are principled in any way, I think that is one sort of deep

question, right? Sort of the degree to which these are just instrumental, right? That they are window dressing for completely outcome driven decisionmaking or whether there's something more. I think you are a cockeyed optimist. Me too. About the grudging admiration, especially. But go ahead, Melissa. I like it. Well, I mean, Emily, tell me if you think I'm wrong on this.

I mean, I think there is a way for Gorsuch to hew to this idea that text is everything, but then sort of pivot and say, in 1964, when they were debating Title VII, this was not what they thought about when they were thinking about discrimination based on sex. And it's a kind of, you know, almost original public meaning kind of question that they're sort of infusing into textualism.

But it's legislative history, which you're not supposed to do with them. Which they're not supposed to like. Which is a problem. But, I mean, Melissa, yes, Chief Justice Roberts and Alito made exactly that point at oral argument. I don't think if they lose Gorsuch there will be a shred of grudging admiration for him on the right. The biggest response I got to my piece on the right was slamming this whole idea that there was something textualist, like anything textualist about ruling for the LGBT plaintiffs here. So I think that Gorsuch is expected to come

around to this point of view. I don't think it's the best textualist reading. I think if you're a pure textualist, then, you know, Pam Carlin and David Cole, who litigated this for the plaintiffs, like they were correct and they made a very compelling argument. And Justice Kagan did a really good job of helping them along. But I still am going to be really surprised if Gorsuch votes on their side. They're going to take purposivism and dress it up like textualism. That's what's going to happen. That's so, excuse me, batshit. Like, that's going to blow my mind. Having tried so hard to keep these categories separate, I'm

just going to be, like, left, you know, holding some sad set of preconceptions. But the way you can try to, I think, square that circle is to do so. Posner wrote a very critical book review of Justice Scalia's reading law, the more recent of his two books with Brian Garner. I can't remember what year he published it, maybe like 2012 or 2013. And in this unbelievably scathing review in The New Republic, the title of which was The Incoherence of Antonin Scalia, it's just a great piece. But he describes Scalia's method as what he calls textual originalism. And nobody else really uses that phrase, but I think it actually does accurately describe what the majority, if it does rule against the plaintiffs in the Title VII

cases, will be doing, which is, you know, I think you're right, it is purposivism probably dressed up as textualism, but they will attempt to show they are just doing to old statutes what originalists do to the Constitution, which is to ask about commonly understood conceptions of what words mean in context. And they would ask about that, you know, in 1964. So they can say it's a form of textualism. And it's, you know, it's not this kind of, you know, cursed purposivism or intentionalism, which they disavow. But in fact, they will be asking about what the drafters wanted, right? What they meant or wanted. That seems entirely plausible to me. I don't think it's done. I think, though, I do have to stick with this notion, or just with continually pointing out the weird slippage and inconsistencies about these methods, which is like, anytime you think you understand what it is, it sort of morphs into something else. And when you think about Justice Scalia, who was one of

the main originators of originalism, really taking issue with legislative history, i.e. looking at the intents of the congressional drafters and saying how impossible it was to ever divine, like, which I kind of buy that idea there are a million people who knows what they thought other than what they wrote down i get that but um allowing it for constitutional analysis sort of even as you're also like obsessed with the dictionary and then injecting it into title seven analysis like this is just weird and incoherent um did you guys read the article that Adrian Vermeule, a Harvard law professor, recently published in The Atlantic in which he was basically like

jettisoning originalism and textualism forevermore for conservatives and offering up something that, and I should say that Vermeule has not, as far as I know, himself been an originalist, so I'm not accusing him of like some jujitsu hypocrisy here. He was presenting for conservatives just like, okay, it's time to just say what we want. And what we want is basically, like, stronger rules and order and a really strong presidency. And we should just say that and, like, forget about mucking around with all this methodological hocus pocus. I mean, I sort of enjoyed it for its bracing honesty, but he seemed to be standing all by himself. Well, he certainly drew some fire on Twitter for it. Lots of people came for him. This is common good original. Yeah, I sort of hesitate to even give it the name that he gave it because I think it's such a crock. But yes, that is what he called it.

Common good constitutionalism. Or common good constitutionalism, I think, not originalism, right? He expressly says it's not originalism. Right, it's about substantive values. And those among the values are the ones you identify, Emily, like deference to the executive. And authority in general. I mean, it's very much Vermeule's idea of the common good. That's why I'm like a little

unwilling to give him the name. And that was a lot of the criticism, like whose values are we reflecting? To be fair, that same kind of critique is one that could be lodged with living constitutionalism, for example, you know, like that we interpret the Constitution based on what we see today and in the context of values that we believe are common to all of us. Like, what are those common values? Like, who knows?

What would be common to the three of us might be really different for someone else. And that's the same. Right, and I think what Vermeule was doing and invoking, you know, Dworkin, who believed in judges, he believed in judges recognizing that, of course, part of their work is value driven. I mean, I think Vermeule's purpose, I thought, was to say like, hey, conservatives, we're in control now. Like this is what courts do. This is what justices do when

they control courts. They inject their values into the jurisprudence. Liberals did it with their ideas of living constitutionalism. Now it's our turn. Well, I think the Roberts court began with such a fallacy. And, you know, I know that the chief justice, like I'm sure it was advised to say this, but it just strikes me, you know, 15 years out as just such chicanery that what judges are doing is calling balls and strike. They're just sort of neutral umpires. Like umpires aren't necessarily neutral. I mean, like they determined where the strike zone is, right? So. Totally. And how do you make close calls? Yeah. I mean, just like the whole idea that this, well, this kind of idea that

judging is like making a set of computer macros and like shift F1, concur, shift F4, dissent. I mean, it's just, to me, it just sort of, it's so reductive. And again, the reductivist idea is just a sort of anything that looks remotely like interpretation is obviously wrong and obviously activist and purpose driven. share that a lot of these sort of professed methodological commitments are just window dressing, right, for, you know, the implementation of a preferred policy agenda. And that it's even if this was kind of a terrifyingly authoritarian vision of society, at least it said, you know, it's okay for us to advance our substantive vision of the good. And, you know, denying the kind of discretionary element, the judgment in judging is one of the things. And, you know, denying the kind of discretionary element, the judgment in

judging is one of the things that I find most frustrating about textualism and originalism. And so I did, though it was sort of a pilloried essay, I actually did appreciate that dimension of it. Yeah. And the justice on the court currently who I think is the most in line with Vermeule's vision is Justice Alito, who is, you know, very much like a results-oriented judge and doesn't really make any bones about it, like doesn't claim to have some overarching philosophy. And I think the contrast with Justice Thomas and Justice Gorsuch, who really do claim to have this more abstract set of principles that are driving them, is itself an interesting tension on the court. Yeah. Well, can we talk a little bit about Justice Thomas and sort of where he sits? A lot of the piece that you wrote for the New York Times Magazine focuses on what the addition of Gorsuch and Kavanaugh mean for the court and its trajectory. But Justice Thomas has been there since 1991, holding down the right. And, you know, I've said before, I think his job satisfaction

has gone way, way up in the last year and a half. So where does he sit in all of this? And what kind of moves do you think he makes in sort of shaping the way the court moves? Well, I think in a lot of ways, he's the sort of progenitor more than Scalia for what Gorsuch is doing in that he has been the most determined in the past to really stick with originalism, at least his version of it. And he doesn't care how disruptive it is, right? So we're about to talk about Ramos, in which there's this whole argument going on over stare decisis and what counts as good precedent, etc. But Justice Thomas has said, like, basically, I don't care if a past decision is wrong, that's enough reason to overturn it. I don't need all this fancy, like, set of justifications where you need like some

extra reason at the same time. And so I think that he is a real kind of clarion call, bracing in his own way in just being really clear about particular ends and getting himself there. So one of the things I think is really interesting about him is he's all of the things you say. He's the midwife of originalism on the court, I think. And as Kate has said in past podcasts, he is someone who seems totally off the wall at time one. And then by time two, he's normal. It sounds completely fine. It's sort of like when I worked at The Gap and the shirt that you saw at The Gap on sale in February, like that looked hideous. By the time you got to the end of March, you could figure out how you were going to like put it together with something else. Like it always,

like that's how I think about his work. It seems totally off the wall and then it seems totally plausible in time. One of the things I think is really interesting about him is his views on race are so interesting and so outside of the norms of conservatism. And you highlight this a little bit in the piece. I mean, you refer to Corey Robbins' book, The Enigma of Clarence Thomas, where I think Robbins makes this, I think, quite provocative claim that Thomas is not a sort of run-of-the-mill Burkean conservative. He's not individually focused. He is actually focused on the collective, and the collective he is interested in is the black community. And he understands the sort of uplift and, I guess,

prosperity of the black community be organized and centered on this idea of a black patriarch, kind of sequestered away from government by himself, away from white people, and just kind of doing it for his family without any intervention and without any intrusion or help. He's lifting himself up. Do you see other places? I mean, one place that Corey Robin identifies in his jurisprudence where this comes up is in gun rights. Absolutely.

Gun rights is one place. Are there other places where we're going to see Thomas's views about race sort of surface? I think Ramos might have been a place where it certainly came into play, although he doesn't say much about it in his writing in Ramos. But are there other places where we're going to see this come to the fore? I mean, I feel like I've learned about this opinion mostly from you, but Box, the Indiana abortion decision, has a whole argument about abortion as just being about like eugenics to destroy black people, which is like super race lad I think he and Sotomayor are the two members of the court who are most explicit about their discussions of race, albeit for completely different purposes. On opposite ends of the spectrum. Very opposite. But yes, you're right,

Melissa. I think it's so interesting. And when we get to talking about Ramos, I think it's even more interesting because there are very definitely people on the court who seem to think that any kind of invocation of race is really suspect. And Thomas is not one of those, which I think is, again, if you're thinking about him as the original originalist, I think he really believes that there is no way we get like that you have an originalist vision without sort of sorting through the racism the slavery or anything else that's shot right i mean cory robin in his book talks about how for thomas there are two constitutions there's the 1789 constitution which is like deeply rooted in preserving slavery. And the ergo like bad for black people, clearly. But then there's the second constitution that comes out of Reconstruction. And the move that Thomas makes,

which is really different from liberal celebration of Reconstruction, is to say that what Congress was doing with the 14th Amendment was protecting economic liberty. And that that black patriarch you were referring to succeeds by having the freedom to build up his own company just the way Thomas's grandfather did. And there's kind of zero recognition of the idea

that government regulation is part of the market. Like they are together. It's a world in which Lochner is totally good for black people. Exactly. Exactly. Lochner is good for black people and basically should be resurrected. And we should also say

that the black community Thomas is referring to is like so infused with respectability politics, right? It's like the black people who are complaining about the young men with the guns in their neighborhood.

It's not like the whole black community, right? Which is how you can get an opinion like the one in Box versus Planned Parenthood where the women, the black women seeking abortions are would-be eugenicists who are aided by, you know, these abortion providers who want to deracinate their community

and they're too unwitting and selfish to even understand what they're doing. So I think he's the most fascinating member of the court. Kate is like, please stop fawning over. No, I love talking about Justice Thomas with you because I think you're like it's Justice Thomas is tough. And I think a lot of people would just rather like dismiss him as a kind of conservative who like isn't operating good faith.

But I also agree with you that that's a not fair to him and be what's actually going on is much more interesting. No, he's endlessly him, and B, what's actually going on is much more interesting. No, he's endlessly fascinating. And I think it's actually a good segue to Ramos maybe in two respects. One, Melissa, you said, I think correctly, that he is the least likely to shy away from being explicit about the racial dimensions of legal questions that the court is confronting. And so I actually thought it was interesting and sort of surprising to see Justice Gorsuch began his majority opinion for the court in Ramos, which found that unanimous juries are required in criminal cases, right, not just in the federal system, but in the states, with a really detailed acknowledgement of the racist origins

of the laws that are still on the books in two states or that were still on the books until the Ramos decision came down. So one, I wanted to flag that. But two, I think this is a good segue because so whatever method a justice professes to adhere to in deciding cases, whether we're talking about constitutional cases or statutory cases, in some ways, what is most important is what they do with their own prior cases, because most of what they spend their time doing is not parsing text, whether it's constitutional text or statutory text. It is figuring out what previous decisions of the Supreme Court actually mean, right? Like they cite their precedent more than they cite anything else, dictionaries, legislative history, anything. So how they feel about what is owed to previous decisions of the court in some ways is

going to be the most outcome determinative question. And so stare decisis and the role of precedent is just so centered in all the different writings in the Ramos case. It's fascinating. I feel like we all need to probably teach this case, although I don't think going in, I realized quite how significant it was going to be. So, Melissa, do you want to frame Ramos before we sort of dive into the various opinions? Ramos, I thought, was a fascinating case from the start. I think I said this when we first covered it in our preview. But the constitutional question here is whether the Sixth Amendment applies to the states to require a unanimous jury for conviction, as is the case in federal juries. So it's basically an incorporation case.

The underlying law that was challenged here is a Louisiana policy that allowed for non-unanimous jury convictions. And the law in its earliest iteration was a remnant from the state's post-reconstruction efforts to limit the influence of African-Americans on juries. So the idea was that you could have a non-unanimous jury. And in that way, it wouldn't matter if African-American juries or jurors tried to stonewall. You could just sort of avoid them by having a non-unanimous jury and in that way dilute their power on the jury. Interestingly, Louisiana much, much later sort of, again, recodified the policy, but without the kind of racial baggage that had attended its original iteration of this. But again, the policy is challenged here. Interestingly, at the time this was heard, there is only one state in the union that allows for non-unanimous

jury verdicts, and that is Oregon. Louisiana actually did away with its law a couple of years ago. And so with Louisiana changing the policy, that leaves only Oregon. This was not the first time the court had taken up this question. In 1972, in a case called Apodaca v. Oregon, they again picked up this question of whether incorporation doctrine required the incorporation of the Sixth Amendment requirement of a unanimous jury verdict to the states as well. And this was a very fractured opinion. There are a bunch of different opinions from the court. There's no majority opinion, a bunch of pluralities. And then this lone decision from Justice Lewis Powell, which advocates a kind of theory of two-track incorporation whereby the

states can do their own thing and the federal government, federal juries can do their own things. And so one of the big aspects of the Gorsuch opinion is how to even deal with Apodaca, right? So if Apodaca stands as a precedent, and much of the oral argument was over whether the court should overrule Apodaca, Gorsuch's opinion is sort of like Apodaca isn't a precedent at all. It's sort of the ravings of one justice, Lewis Powell, which I think is so interesting because another fractured opinion from the 1970s in which Lewis Powell stands alone is Bakke versus Regents of the University of California, an affirmative action case. So I think if Apodaca isn't presidential, I don't know how Bakke could be understood in that way. And so I

think this explains the sort of weird lineup that we saw here. But the really interesting lineup comes in the dissent where you have Alito, sort of a purpose-driven originalist, Chief Justice Roberts, the ultimate pragmatist, and then Elena Kagan, who I think is sort of wheeling and dealing here and trying, I think, to not only preserve stare decisis and fidelity to stare decisis because June services, June medical services is also on the docket, also a precedent that needs to be attended to. But Bakke and these other cases are also hanging in the balance. And I think she's working really hard here to kind of set up this sort of, I don't know, it's almost like Game of Thrones. She's trying to set up this sort of huge battle for stare decisis. And I think she's reasonably successful in doing it, although she draws a lot of criticism for siding with what seems to be the right wing of the court on an issue that is shot through with racial antipathy. So I guess that all I would say for Justice Kagan is maybe she's trying to preserve her own intellectual consistency on questions of

stare decisis. It's hard for me to see what else she gets from this. I mean, I guess like TBD, we'll see. But that is one thing that you can actually see that she could claim to be getting from this. I wonder, well, let me say two things about Ramos and the history and sort of present tense of Ramos and then ask you guys a question. So historical footnote, the basis for non-unanimous juries in Oregon was actually pretty clearly anti-Semitism, which is weird.

But there was the murder of a hotel owner in Oregon right before Oregon passed this law in the early 20th century, I think. And it was like blamed on Jews. And there were discussions in the legislature about how there were too many people coming from Eastern Europe, a place where there were lots of Jews coming from. So it's just sort of an interesting and weird historical fact that like Louisiana did this to diminish the power of black people. And Oregon did it because they were worried that like lots of immigrant Jews were coming who didn't understand how to be jurors. They said that. And then the other thing I just want to say, because I reported in Louisiana on some of these cases, there are thousands of people in prison in Louisiana, many serving life sentences based on these split jury verdicts. And the law

disproportionately impacted African Americans. And I did some reporting about people who were found innocent after the fact, and the jurors who voted against convicting them because they believed in their innocence and then were thwarted, which in any other state would have hung the jury. And so the sort of human cost of these laws feels very real to me. And whatever like weird implications it ends up having for the Supreme Court, there are thousands of people in Louisiana, it's not clear what's going to happen to them, because this case only potentially granted relief to about 30 people whose cases were on direct review. But there's like a side fight going on in the Supreme Court opinions about all these other thousands of people and whether they deserve new trials. So that's sort of another space to watch.

Yeah, and we should say that the Supreme Court's doctrine on retroactivity, right, the applicability of a ruling like this to people whose cases have already become final, is a hard question and likely will present in some future case, you know, a follow-on case to this one. But yeah, in theory, at least thousands of people could. I think they leave the door open, absolutely, to this rule being applied retroactively. So in theory, many more than the cases on direct review could be impacted. So my question for you guys has to do with Bakke, and I guess with Kavanaugh. Kavanaugh wrote a whole concurrence that's just about like his theory of stare decisis and the factors the court has. It's very like dutiful, sort of has a term paper feeling about it.

Like here, I went and looked at the history of stare decisis and here are the factors we've considered in the past. And now here's what I think we should do in the future. And I read it and thinking about Bakke thought to myself, well, wait a second. There have been other big, important affirmative action decisions that have come down since then. Don't they matter? And I couldn't even easily see what he was saying as grounds for, you know, messing around with Roe versus Wade and Planned Parenthood versus Casey, even though it seems like that was the whole point. What did you guys think about that? Yeah, I want to hear what Melissa thought. I mean, my I will confess that all my kids being underfoot has probably undermined the kind of close read I would otherwise have done of this opinion. But of course, I, too, read the Kavanaugh writing with, you know, like how all of these factors would translate to the abortion jurisprudence context. And I didn't see, you know, and I mean, look, he says the opinion, the precedent has to be in order to justify overruling.

It has to be egregiously wrong. So you could potentially see him concluding that that's true about Roe and Casey. But as to the other factors that he identifies, you know, intervening, well, he talks about reliance. And I think he does mention intervening developments as the other factor, but it certainly seems like reliance cuts in favor of retaining the rule in those cases. And the fact that he seems not to want to jettison reliance as an important consideration, I thought was actually a glimmer of hope for those sort of seeking some clues about how he might approach that question in the abortion context. But again, I might have actually missed it. He also used the phrase egregiously wrong, which cuts in different directions depending on how you feel about it. I'm sure he'll conclude that, you know, if given the chance, that those cases. I mean, not demonstrably erroneous.

I thought it was like sort of cute that he decided he wanted to coin his own phrase, which was not identical to Thomas's, demonstrably erroneous. In some ways, it seems like a higher bar, demonstrably erroneous, in some ways seems like a higher bar, right? Egregiously wrong. Although I don't know, like angels dancing on a pinhead. I'm not sure like what the difference really is. But I do think the fact that he thinks that these other pragmatic, yeah, that's right. So he says egregiously wrong, these pragmatic considerations and then reliance, two and three seem to cut in favor of retaining Roe and Casey to me. And Melissa, how did you read it? I did not read it like that. I think he is, I think the whole idea of egregiously wrong

is looking toward Casey. But I think the opinion he is really writing in advance of here is not whatever opinion sort of takes on Roe, but he's writing in anticipation of the decision in Espinosa, which is another case that the court has heard this term where you had a statue with bad anti-Catholic origin. Yes. So, I mean, this is the Montana law that prohibits the use of public funds to religious groups or religious schools in this case. And at oral argument, he was incredibly exercised by the anti-Catholic origins

of these so-called state-level Blaine amendments. Notably though, Montana had reissued this prohibition on the use of public funds like in the 1970s. And it didn't- Ah, but so did Louisiana. Exactly, exactly. So I mean, I think that's really where he was here. So I thought Ramos is just, to me, endlessly fascinating, like because this was a case about criminal law, but about all of these other things and all of these other

side fights that the justices are having about stare decisis, about the weight of precedent. Abortion is teed up here. The First Amendment is teed up here. And, you know, I think a lot of people were really cheered to see this decision. And, you know, I saw one person on Twitter talking about, you know, Neil Gorsuch is so woke. He really got the sort of racial dimensions of this. And maybe he is. But I think this case is about, this case, I think we are going to be peeling back the layers of this onion for a long, long time. I agree. Let's briefly cover some court culture. We are going to hear the court live, I guess. I'm not sure how this is going to happen or what outlets will hear them. We're going to hear them live on next, today, if you're listening to this on Monday the 4th, in the first ever live streamed oral

argument. So that's really exciting. And I hope the litigants who are appearing before the court today take heed from the experiences that some other litigants and advocates have had in their first go-arounds in this sort of remote environment. So first of all, I want to just call out a Florida judge who issued some guidance to those appearing in his courtroom that despite the fact that these were telephonic conferences or Zoom conferences, all of the litigants and their advocates were required to wear shoes and shirts. So I am a native of the Sunshine State. All I could say to that was Florida's gonna Florida and please put a shirt on when you come to Zoom court. Another point that I wanted to make, someone sent me

a dispatch from the Northern District of California where there was a telephonic argument in front of a judge. And apparently someone could not hold it and went to the bathroom on this telephonic conference. And it was completely on mute. Not muted. Did not mute. Maybe thought they muted. Thought they muted. But you got to keep your telephonic game tight for these new environments. My heart goes out to that person.

That is something we can all imagine dreading. Awful, terrible. But in any event, we just want to thank Emily Bazelon for joining us. You can follow Emily on Twitter. You can also catch her podcasting at Slate Political Gab Fest. And you can read her writing in the New York Times Magazine. So thanks for joining us, Emily. Thank you guys so much. This was super fun. That was great, Emily. Please come back. We'd love to have you again.

My pleasure. Thanks so much for joining us for this latest episode of Strict Scrutiny. We will be back in your ear holes again as soon as we can, hopefully with some dispatches from the court. As always, we are grateful to our terrific producer, Melanie Rowell, who makes us sound so good. And today she really had to work overtime. We are also grateful to Eddie Cooper for our music. And of course, grateful to all of you for listening, for purchasing Strict Scrutiny gear.

Keep wearing it. A pandemic is as good a time as any to have a strict scrutiny glow up. And please keep sending us your feedback. We'd love to hear from you. Thank you.