Strict Scrutiny - Stay Mad Like Sam

Episode Date: May 9, 2022

Kate, Melissa, and Leah recap the remaining arguments from the April session: Nance v. Ward [1:38] and Biden v. Texas [18:04]. They also get into a unanimous opinion about religious speech [43:28], and of course, break down some court culture before continuing their investigation into the leaked draft opinion [52:30].Protect Abortion Access. Donate to Abortion Funds. VoteSaveAmerica.com/roe 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. Hello and 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 have not lost any constitutional rights between the last episode

and this one. So feeling good. If we stack them 24 hours apart, like that's the only way to do it safely these days. Leah, the morning is young. I'm Melissa Murray. Even though Rome's burning, wait, do you hear that? Do you hear the fiddle? That's Justice Alito. Even though Rome is burning, we are going to press on listeners. So today, we're going to recap some of the arguments from last week. That was the last week of the April sitting. And we're also going to break down the court's opinion in Shurtleff v. Boston. That is the Boston flagpole case. We're then going to add a couple of additional thoughts about the blockbuster leaked opinion in Dobbs v. Jackson Women's Health Organization. So buckle up, buttercups. Here we go. The first case that we

promised we would come back to is Nance v. Ward, which was one of the cases argued in the second week of the April argument session. The issue in this case is whether a death row inmate's challenge to the state's method of execution, i.e. how the state plans to execute someone, must be raised in what's called a habeas petition instead of through the civil rights statute, Section 1983, if the death row inmate argues that they need to be executed under a method that isn't currently authorized by state law. If that sounds weird, that's because under the Supreme Court's precedent and current doctrine, if you are arguing that the state's method of execution is cruel and unusual because it would cause too much pain, you must identify an alternative way of carrying out the death sentence that wouldn't be cruel and unusual. That's just what you are required to do. That sounds cruel.

Right. Exactly. Exactly. Because the process is the punishment or part of it. Right. So you are a condemned person and you have the burden, not just to show that what the state is trying to do to you or wants to do to you violates the Constitution, the Eighth Amendment, but you have to come up with an alternative. Like it's just an insane standard. And yet there it is. So the question, since that is the standard, is how you're required to raise it, right? So via habeas or via Section 1983. And then there's a second question in the case, which is whether if it is the case that you have to raise a challenge like this in habeas, it constitutes a

second successive petition if the challenge would not have been ripe at the time of the inmate's first habeas petition. Now, as we said on a previous episode, if the person sentenced to death is required to challenge their method of execution via this habeas petition, there is a real risk that they wouldn't be able to challenge the method of execution at all torture for that person also might not be clear when the petitioner files their first federal habeas petitions. For example, some people develop over the course of lengthy incarcerations medical conditions that make specific methods of execution particularly torturous, even if that wouldn't have been the case when the individual was first sentenced to death, say, many years earlier. Justice Kagan really concretized the stakes in this case. And just for context, in this next clip that we're going to play, she repeatedly references a case called Bucklew. That's a case about challenging whether a state's method of execution is cruel and unusual punishment when it is applied to you. So let's hear from Justice Kagan.

But doesn't what this ultimately boiled down to whether Bucklew is completely gutted? I mean, you're suggesting an approach where it's like, it's not 1983. It's habeas. Oh, sorry. In habeas, you run into the second and successive bar. You're just never going to be able to bring these claims. Or maybe I should say almost never. And it seems as though that's exactly what Bucklew said should not happen. Bucklew, all nine justices agreed on one point, which is that somebody in Mr. Nance's position was entitled to raise an alternative method of execution that had not been authorized by state law. And the court said, we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative for that reason, because he was

entitled to identify an alternative that was not authorized. There was a concurrence that really underscored that point. And now you're saying, oh, well, you know, really, Bucklew didn't mean what it said, notwithstanding that it said a petitioner is always going to be able to do this. What we meant was a petitioner is technically always going to be able to do this, but in 90 percent, 99% of the time, he's not going to have an appropriate vehicle. Now, is that really a reading of Bucklew that would not be, I don't know, embarrassing? I just want to underscore her line. Now, is that really a reading of Bucklew that would not be, I don't know, embarrassing? The library is open. That was a read. That was a read.

That was definitely a read in the grand tradition of Paris is Burning. But I just, hearing all of this and listening to these clips now that we have seen this leaked draft opinion in Dobbs, really makes me feel for, I think, Justice Kagan and Justice Sotomayor in particular, that they know all of this. They are asking these questions. And I can only imagine having to try to restrain the sense of profound disappointment, anger, just frustration, disbelief at what is happening around me. So Georgia's argument in this case partially depends on whether Georgia has made a particular method of execution a component of a defendant's sentence or part of the judgment in the defendant's case. Because if they have, then the person who successfully challenges a method of execution has altered the judgment in their case and the

sentence that is imposed on them by law. And if that's true, the court's cases suggest it should have been brought as a habeas petition. So Justice Kagan summed this up. See, I guess I thought that our test is always, does this imply, necessarily imply, the invalidity of the sentence? And if the sentence is just death, this does not necessarily imply

the invalidity of the sentence. Quite to the contrary. The problem, however, here is that it's just not true that as a matter of Georgia law or federal law, that any particular method of execution is part of a defendant's sentence or the judgment in their case. And again, Justice Kagan just pummeled the Georgia state lawyer with these points about Georgia law. Well, Mr. Petrani, doesn't Georgia law itself separate the sentence of death from the method of execution? So I'm just going to read you your statutes and you can tell me whether I've gotten them wrong. But it says a person convicted of the offense of murder shall be

punished by death, by imprisonment for life without parole, or by imprisonment for life. That's one. And then there's another provision, just by death. Another provision that says all persons who have had imposed upon them a sentence of death shall suffer such punishment by lethal injection. So your own statutes are clearly saying it shall be punished by death. There's the sentence. And if you're given that sentence of death, here's the way we propose carrying it out. Well, here you have a statute.

It says what it says. Then you also have a Supreme Court decision that makes clear that the ordinary way of reading these words is, in fact, the way Georgia reads these words. And that's why nobody needed a resentencing when you changed your method of execution. So I guess I just don't see what argument you have here. She really twirled on him. In a very Todrick Hall kind of way Kate's like uh-huh I'm gonna confess don't even think it's not like I've heard the name and can't place it I literally have never heard that name who's Todrick Hall oh Kate um nails hair hips heels he sang that song he's taylor swift's good friend he's go look on youtube

look yeah exactly okay okay how about this one cody rigsby danced to his song nails hair hips heels in the finale freestyle of dancing with the stars go watch that clip it will give you the energy that we need in this moment. You want to pause the recording and I do that and I come back? We'll record a special video in which we capture your reaction to that video. We're going to take a brief break for Kate's continuing legal education. Excuse me. CLE credit is being offered right now. I feel like if Melissa and I would ever get onto TikTok, I feel like there might be something to do with this, but I'm not sure if that's ever going to happen. But I am glad you're back on, Leah. Thank you. You're doing the Lord's work for the podcast.

I am trying. And I'm not sure how long I'm going to be able to stomach it or tolerate it this time, but we're trying. So also in the case with the federal government, and Masha Hansford appeared on behalf of the Biden administration in the case, but not supporting Georgia, supporting the petitioner slash death row inmate, arguing against Georgia's position. I mean, that's not always a foregone conclusion in a criminal case. So kudos to the Biden administration. And I thought that Hansford was extremely effective. In response to a question from Justice Alito, she argued that if the court were to rule

for the state, it would make it harder for the court to reinstate capital sentences in the way they had done during the waning days of the Trump administration. So this was a very know-your-audience exchange with Justice Alito. So let's play that clip here. Suppose we were to agree with the state in this case, in what way would the interests of the federal government be adversely affected? Absolutely, Justice Alito. We do think that the determination in this case as to whether this is a core habeas claim would also apply to the federal government. The federal government, of course, federal prisoners do not use Section 1983, but they use the APA. And in the method of execution litigation that the federal government

handled in 2020 and 2021, the prisoners did use the APA. Many claims were joined together. At some point in that suit, the prisoners added a firing squad alternative. And we do think that if there were a dual-track system, there would have been all kinds of procedural complications to what was already a very complicated and difficult, there would have been all kinds of procedural complications to what was already a very complicated and difficult litigation that would have made it substantially more difficult. I kind of love this. Like, had you really thought through all of the dimensions of this? Because if there's anything that might give Justice Alito pause over whether to rule against the government in a death penalty case, it would be whether doing so might make it harder for the government to execute more people as quickly and

as lawlessly as possible. So good time. Good work, Masha. Yes. No. So all of the court's death penalty arguments now have a particular flavor. Sometimes it's explicit. Other times it's more of a subtext or an undercurrent. But some of the justices, and I'm thinking specifically of Justice Alito, will express horror and rage at the fact that lawyers are trying to use litigation to stop their clients from being killed by the state. Cal's surprise. And more importantly, he seems particularly outraged that they feel the need to use legal process to do this as often as possible. And he really wants to curb death penalty litigation in order to ensure that capital sentences are carried out. And he's mad that people are trying to use legal process to make sure that's done in a lawful way, if it is done at all. I want to give a compliment that's, you know, maybe a twisted compliment. But I think it's important to see here that Justice Alito has been able to maintain a level of rage throughout this term, despite the fact that he was assigned in the majority opinion

to overrule Roe and appears to be, again, on the precipice of doing the thing that he's wanted to do for like all of his life. So listeners, if you are feeling like, how can I sustain rage in order to respond to this impending disaster slash everything happening in the country, look at Justice Alito and stay mad like Sam. Counterintuitively, there's your inspiration. I think that's a great, great point. He's inspo for so many things.

Yeah. And honestly, maybe part of the secret is you need that self-care, skin care. Exfoliation, masking, not COVID masking, just like skincare masking, and like a good exfoliation routine. And once you've taken care of yourself, you have enough in the reserves to maintain that level of rage, even as you are literally scaling the heights of your profession and achieving everything you've ever dreamed of. Exactly.

Except being Chief Justice in real name. But it's enough, I think, sometimes to be the Chief Justice de facto. Right. Oh my God, is that where we are right now? He is essentially the shadow chief of this group. Well, I think maybe they're co-chiefs because I think he and Thomas might be sharing this, you know, like shadow co-chief justice. Yeah.

All right, well, that's grim. Shadow docket, shadow chiefs. Because that's too grim, I guess, let's go back to the death penalty case. This is a really wandering episode. It is, it is. We were all up really late yesterday and the day before. So this is what we've got. This is what we wandering episode. It is. It is. We were all up really late yesterday and the day before.

So this is what we've got. This is what we've got today. Look what you made us do. Did you get that reference, Kate? I did. Look, Taylor Swift directly. Her, like, you know, like her coterie of friends and entourage members, I know. But her actual lyrics, yeah, I'm pretty good on. One last point I wanted to flag about this argument is that Kavanaugh came in with a

pretty interesting line of questioning that connected this case to the Ramirez case, in which the court sided with a prisoner who wanted his pastor with him in the execution chamber, you know, praying audibly and laying hands on him. And Kavanaugh said, well, that wasn't like those cases typically are section 1983 cases, and no one says you have to bring them in habeas because they're really about the how, right, rather than whether a sentence of death is going to be carried out. And it seems like that's the case here. So maybe let's play that clip now. Were our recent string of religious advisor cases properly brought in 1983 to the extent that it required a change in state law? So, Your Honor, as I understand those cases, they didn't require a change in state law.

It was just a practice. And so they were, in fact, properly filed in 1983. Suppose they were in state regulations that had to be changed, though. Yes. So, of course, that case isn't actually presented here and there are slightly different concerns. So if a state puts no religious advisors into the execution room into the state law starting tomorrow, will those claims now have to be brought in habeas rather than 1983 and then barred? Yes, so I think that they would have to be filed in state court, and they would have a very good chance of succeeding.

And so I think states are very unlikely to handicap. But no federal form available for that claim? Well, of course, to the extent that state court goes completely rogue, there's still review by this court available at the end, which is what Congress. By federal district court, I should say. Yes, no, exactly. No federal district court review in that very unlikely. And as far as I'm aware, like essentially, you know, never happens kind of circumstance. But I think it does point out the oddity, I think, that I don't know that anyone paused to say, boy, this religious advisor claim should be in habeas. Look, the court having resolved Ramirez in the prisoner's favor does not by any means decide this case.

But I do think it suggested that Kavanaugh at least is sympathetic to the prisoner's argument that this is appropriately brought in Section 1983, just like the religious liberty claim in that case was. That I thought was a hopeful sign about where Kavanaugh was. Noted squish, Brett Kavanaugh. That's right. So the other case we wanted to return to from the last week of the court's arguments was Biden versus Texas. This is the case about whether Democratic presidents get to make immigration policy

or whether instead that task falls to judges nominated by Donald Trump. More specifically, the question in the case is whether federal law requires the Department of Homeland Security to continue implementing the Trump administration's disastrous migrant protection protocol, ainating MPP, had no legal effect. Now, just as a reminder, as we said in an earlier episode, the Fifth Circuit concluded that it wouldn't even look at the Biden administration's October memo rescinding the MPP because that October memo wasn't, quote, a new decision, even though the agency said it was a new decision, it addressed what the Fifth Circuit had previously identified as, quote unquote, flaws in the prior decision's

reasoning. It was obviously a new decision. And on the thinnest of justifications, the Fifth Circuit just totally refused to consider it as a new decision at all. Now, I think it's possible, though I am actually not at all certain, but possible to likely that we have found, finally, another Fifth Circuit decision that is too insane for this Supreme Court. But I also think that this decision, reversing the Fifth Circuit if that's where it comes out, is going to be quite narrow, right? Court would most likely write it in a way that does allow a future GOP administration to bring back MPP. And the court may just avoid reaching a bunch of issues that will be subject to further litigation on remand, like whether the Biden administration's detention, parole, and release practices comply with other parts of the INA, which was very much woven throughout the argument,

though not squarely at issue in the case. And also whether the October memo, if it is a new decision, which I think it clearly is, comports with the APA's requirements for reasoned decision making. So a decision reversing the Fifth Circuit by no means puts a complete end to this litigation. And even, I think, a decision on those narrow grounds that would preserve future litigation challenging the Biden administration's attempt to end MPP seems likely to provoke a dissent from at least one justice. Who could it be? Who could it be? That would be stay mad Samuel Alito, who is going to dissent vehemently from this decision in what I'm sure is likely to be Xenophilito fashion. As I suggested when offering some unsolicited advice to our listeners, Justice Alito was quite angry during this particular argument session and this argument in particular.

He was really a big dick to Solicitor General Elizabeth Prelogger. I mean, he was. He was. There's, you know, I call it like I see it. And- Wait, wait, wait. Was it big dick energy? No, it was not big dick energy. He was a dick. He was a real dick. He was just a dick. He was a jerk to her about the Solicitor General's briefing in the case. So let's play that clip here. Don't you think that that's a, I mean, you might be right, but don't you think that's a far-reaching argument? Don't you think that

goes well beyond anything that would come to our, that we would have thought about in Garland versus Gonzalez? Don't you think that deserved briefing? Well, certainly, Justice Alito, I defer to this court and how it's choosing to resolve those issues in Alleman Gonzalez. With respect to additional briefing, we did include briefing on this issue at the stay stage in this case as well. So I would refer to our — Well, did you say anything about the APA in the Gonzalez case? I'm sorry that I can't recall right now whether we briefed that issue there. If you're telling me we didn't, I assume we did not.

On the jurisdictional question, you think that we should go back and read what you've submitted below. It wasn't important enough for you to submit it to us directly. We did brief this issue at the stay stage in this case. In this court, we understand issue denied the stay nevertheless and found a likelihood of success on the merits with respect to the procedural APA claim on the June 1st memorandum. So that's why we didn't renew our briefing on this issue at the merit stage. Note that after the argument, the Supreme Court ordered supplemental briefing on this issue. And honestly, I have no idea what this means. It seems like this is another piece of evidence that something crazy is happening at 1 First Street.

And it's all just a little much. I mean, as S.G. Prelogger noted, they, the Solicitor General's Office, briefed this very issue when the matter came up to the Supreme Court on the stay application earlier, and the court denied it. And now all of a sudden, the court is like, well, maybe we got it wrong. I mean, a part of me wonders if this supplemental briefing order is just the product of Sam Alito throwing a temper tantrum that he's going to lose this case and is demanding briefing on some other issue. Like, I just really don't know. So he was also super aggro about some other things, too.

So at one point, he noted that in an earlier case, the government seemed to have taken an entirely different position. He was essentially saying, like, you guys are waffling on this question, like being, you know, instrumental, I think was the underlying point and taking different positions in different cases. So let's hear this. I'll tell you when, excuse me, if I ask one more follow up. I'll tell you when I read your brief on this point, I said, wow, this is exact. I remember the Jennings case where I had the pleasure of writing the opinion for the court. And I said, well, my recollection is that the government's brief in that case took exactly the opposite position from what the government is taking here. And I went back and looked at it, and that is exactly the

case. You stressed that shall be detained means shall be detained. I have it right before me. You emphasize the language, shall be detained. And you went on. This is a brief file by your predecessor, Mr. Gershengorn. So a couple of things to note here. One, he totally cut Justice Sotomayor off to ask this question. So it's not just the Solicitor General. It's actually his own colleagues. And then, as he noted, he was the author of the opinion in Jennings, but he actually ignored what he wrote in Jennings. So in Jennings,

he said, parole is permitted under mandatory detention, individualized court-ordered bond hearings are not. And plus, he says when he's quoting the statute here, it's allowed where there's a significant public benefit. And here, the administration says that would include taking into account the limited beds that are available and prioritizing beds for those who are flight risks or security risks. And doesn't mention that at all. No. And it was really, I think, shocking. Was it shocking? No. I take that back. Totally expected hackery. And mean. And kind of mean. And nasty. And mean. That nasty man, Sam Alito. I just had this thought as we were talking about like why he's so angry when he's on the precipice of like winning everything. I do wonder whether they already were aware of the

leak at this point, right? Like, so I don't know if we want to talk about this later, but like April 26th is this argument. This is obviously the leaked memo. The leaked draft opinion was a February 10th opinion. I don't know. Politico hasn't told us how long it sat on this leak, trying to authenticate it, presumably trying to make sure that their procedures were going to protect the confidentiality of the source to the extent possible. So maybe he was like... Part of the reason he was so furious from the bench that week was that he knew that this was in the offing. It's one theory. That's I think a distinct possibility.

Even though Justice Alito was a huge nasty man, that did not seem to rattle Solicitor General Prelogar. Her closing in particular was fantastic and wanted to play that here. Finally, I'd like to leave the court with a few concluding thoughts on the extraordinary nature of the district court's injunction in this case, and particularly with respect to its effects on foreign relations. As I've explained, the executive cannot implement MPP unilaterally. General Stone is simply wrong about that. Mexico has its own sovereignty here, and we are sending individuals onto its territory. So we need to get Mexico's consent to operate the program. That gives Mexico an important point of leverage, as Justice Kagan emphasized in those negotiations. And that's what the district court has ordered here. It has ordered us to conduct

those ongoing negotiations with Mexico. It's not just to start up the program. It is coordinating on all of the day-to-day logistics of operating a massive cross-border program like this. The individuals who are returned under MPP need a place to live. They need work authorization. They need access to counsel. They need to be protected against predatory violence from gangs and cartels. We need to coordinate on the logistics of transferring them back and forth across the border into the United States for their immigration hearings hearings and then back to Mexico to continue to await the results of those proceedings. And in all of that, we have to have ongoing logistical negotiations with Mexico. The State Department has told me that it has a weekly call with the Department of State, the Department of Homeland Security, and their counterparts in the government of Mexico to talk about regional migration and negotiate with respect to all of these logistical details. So I think the idea here that there is a

single district court in Texas that is mandating those results, that is compelling the executive to engage in those ongoing negotiations, and is doing so under the constant threat of a contempt motion from Texas to supervise our good faith negotiations with Mexico shows that something has powerfully gone awry here. This is not how our constitutional structure is supposed to operate. And this is not the statute that Congress drafted. So we'd ask the court to reverse the flawed judgment below. Her performance in this argument did make me wonder whether all future law clerks to Justice Kagan will be held to the standard of

Elizabeth Prelogger. So Prelogger clerked for Justice Kagan. I'd imagine that Justice Kagan is super proud of her and a huge fan. And I just wonder if she ever looks at her law clerks or they feel like she looks at them and thinks, you're no SG Prelogger. You're a poor man's Elizabeth Prelogger. Don't you think every lawyer in the country listens to her and is like oh I'll never be I mean I definitely do so I wouldn't be surprised if the king clerks feel the same way but it's okay I'm happy she's so well that's the thing it's like some people

are like well adjusted enough to recognize like they shouldn't value their self-worth by comparing themselves to like the best person at like every other thing in the law but I'm just not sure that every young lawyer has that perspective. That's true. Sometimes it takes a little bit of time

to develop that sense of humility. I did want to flag back to the MPP argument that Alito obviously was one to like asshole gold medal for the argument, but the chief justice, who's usually kind of more polite and respectful- Coming in with the silver. Was like a strong contender.

And he was just like pretty... Maybe he was cranky about the leak too. I think that's also in retrospect totally possible because I was just like, what has gone into him? So first maybe let's play this exchange between the chief and S.G. Prelogger. Well, I think it would leave

the court... If you have a situation where you're stuck because there's no way you can comply with the law and deal with the problem there, I'm just wondering why that's our problem. Our problem is to say what the law is. And if you're in a position where you say, well, we can't do anything about it, what do we do? It was just like both so kind of like contemptuous and so puzzling and also infuriating because it was like, right, so it's not your problem, you court, and the case shouldn't be here at all, right? This is not something courts should be resolving. These are fundamentally policy calls in the context of a lot of statutes that are,

as the argument made really clear, very hard to harmonize. So what you need to do, courts, because in particular of the diplomacy foreign policy piece, is to stay out of this, it seems to me. But for the court to say, at least this seemed to be implicit in the question, which is that we are going to inject ourselves into this. We might just blow everything up and make you continue with this program you've decided as a policy and legal matter to discontinue. And the fallout is kind of for you guys to manage. That's not our concern. It's like, well, you would already have made a bunch of affirmative decisions to involve yourself in this in the first place if you're going to actually, like, set all of that in motion. And it just seemed kind of, like, oblivious to all of that and also just, like, unnecessarily nasty. So again, yeah.

But that's such big toddler energy. Like, that's, like, what a three-year-old does. Like, I just, like, completely fucked up your living room. Yeah. And now you're going to clean it up. Yeah. Yeah. Right?

Yeah. Anyway. So the chief was cranky. Justice Alito was cranky. Elizabeth Prelogar was fantastic. You know who did not come out looking so great in all of this? Who? 2D Judd Stone. I think compared to Elizabeth Prelogar, he just came off as far less impressive. And I think so much so that it seemed possible that he might have lost Justice Thomas on this. So let's play a clip here where Justice Thomas seems to be expressing some real skepticism about Judd Stone's position. So has any administration ever applied, complied with 1225 under your reading? I assume not, Your Honor. Petitioners suggest that no administration, no executive has fully complied with their detention obligations. That certainly doesn't

prove that past administrations assumed that those obligations could be essentially short, could be shirked in the event that they preferred not to use one of Congress's allowed statutory tools, but I have no reason to think that that's incorrect. But wouldn't, assuming you're right, wouldn't it be odd for Congress to leave in place a statute that would appear to be impossible to comply with? Justice Thomas was not the only one. Justice Kagan, having dusted off her library, was also ready to give 2D Judd Stone a read. She was all over him to the point where I almost felt bad for him. But then I didn't. OK, so she's really seizing on a point that Prelogar would come back to in her closing, which

is that the district court's decision here directly interferes with US foreign policy because it gives Mexico all of the leverage because the court is requiring the federal government to do something that will require Mexico's consent. And the only safety valve here is for the district court to decide whether Mexico's conditions on acceptance or giving the U.S. permission are actually too onerous. So like the court itself is doing foreign policy. And so she harped on this and, you know, Prelogger underscored it again.

And I think this is the real sort of question here. I mean, if this is a separation of powers issue, if the federal government and the president's supposed to speak in foreign policy, why is this district court judge talking? Anyway. And Justice Kagan was really not here for Judd with 2D Stone's dumbfuckery on this issue. So let's play the read. The Congress and foreign affairs piece, I think I can address simultaneously. First of all, again, as I just said to Justice Kagan,

nothing about this injunction actually requires negotiation with the foreign power. But in the extent that to some extent this court thought that it did, beats, of course, the foreign affairs power shared between Congress. I'm sorry, I have to stop you there, General. And you can get the other four questions. But what do you mean it doesn't require negotiation with the foreign power? What are we supposed to

do? Just drive truckloads of people into Mexico and leave them without negotiating with Mexico? Again, listening to this on the heels of this leaked draft opinion, really makes me wonder whether some of the Democratic appointed justices have been operating at full throttle for a really long time, and they just have not been able to and can't, and I don't think should, like turn down the volume, you know, when they show up for oral argument, because she's basically holding back laughter at what he's saying. It's so and it's quite something to hear she's literally laughing in his face right exactly like you want to talk about a brutal read right it's justice kagan laughing at you when you attempt to answer her questions so she's amused but also the deeper point i think

that you're making leah is that like they kagan and sotomayor in particular are clearly like sustaining energy and rage. Yeah. Like at an unbelievably high level. So like if Alito is inspo. Maybe they start Sam's skincare regimen. They go back to chambers. They exfoliate.

I don't know. I haven't seen them recently. Like are they a glow? Let's hope that Regé-Jean Page is being really helpful with the face masks. And yeah. But yeah. So if for some reason drawing inspo from Alito's like big mad energy is like a bridge too far, you can draw on Kagan and Sotomayor

who are like really sustaining it over the course of like what must be an unbelievably difficult time inside One First Street. Okay, so Breyer who, you know, is he sustaining rage? I mean, I'm sure he's really unhappy. I don't know know if he's capable of rage in quite the same way as the others we have been talking about. But he was really in full Breyer form during the argument. So let's play a clip here. One, there are cases written by, if not me, at least by people I knew in this court, which said where Congress and the president want something, the political branches have greater than ordinary responsibility for determining immigration policy. And here, Congress has not appropriated the detention money. Two, opinions written by people I actually didn't know, like John Marshall,

you know, have said that where Congress, where foreign affairs is involved, you don't have to be as, you can be as specific as Justice Kagan said or not. But foreign affairs is involved. And judges, this is above your pay grade, okay? Stay out of it as much as you can. Again, senioritis. He's like, when's senior skip day? When are we taking yearbook pictures? You know, we indulged in some like conspiracy theorizing last episode, and I want at several points, he was insisting or suggesting that the Biden administration actually was not doing case by case determinations about whether to parole any particular individual, given the sheer number of people that the administration was paroling. And like, of course, he'd assume something nefarious and bad is going on. So let does it mean for there to be a case-by-case determination? Let's think of the example of people who want to go to a baseball game at Nationals Park. So they all line up,

they try to get through the turnstile, and somebody says, goes through a little checklist, that do they have a ticket? Yes. Do they have a gun? No gun. Do they have alcohol? No alcohol. Something to throw on the field? Nothing to throw on the field. Fireworks. Nothing. No fireworks. Fine. Is that a case by case determination in your in your view? I think that that would satisfy. And that's what you're doing. That's basically what you're doing. You got a little checklist and you're going, you know, boom, boom, boom. And that's how you can process. Maybe you're right. But that's what you think Congress meant by a case-by-case determination. I love the invocation of a checklist. Like, they don't have a checklist. Like, abortion? Projection. Religious freedom. Projection.

Projection. We'll be right back. All right. So this week, the court released an opinion. And to be clear, this was an official final opinion. It was not leaked to Politico and Josh Gerstein. It actually came through the court's public information office. And it was an opinion in Shurtleff versus City of Boston.

So again, we previewed this. We recapped the oral argument. But this was a challenge to the City of Boston's flag displays at Boston City Hall. So essentially, Boston displays the flags of many organizations. But it refused, in this case, to fly the flag for Camp Constitution, which is a religious organization on the ground, that it was a Christian flag. And in flying it, the city of Boston might be viewed as endorsing a particular religion. And so the question in this case was whether it violated Camp Constitution's First Amendment rights because the city discriminated on the basis of religion or was discriminating on the basis of viewpoint. And the court issued a

unanimous decision saying that Boston's actions here were unconstitutional. And the reasoning focused on whether the flag display was government speech, that is speech by the government, or alternatively private speech. And this was an opinion written by Justice Breyer. And not surprisingly, and true to form, he issued a multi-factor test for determining when, in fact, the government was speaking. And it matters a lot, of course, if it is the government speaking, because under the court's previous cases, reiterated here, if it's government speech, the city has a lot of leeway to pick and choose between different viewpoints because the government gets to share its own message without incurring some obligation to give equal airtime to all opposing messages. But if it's private

speech, the government can't discriminate between different viewpoints. And in the unanimous opinion that Melissa just mentioned, the court concluded that this was more like private speech than government speech because the city, you know, didn't purport to say these are our flags or we endorse these flags or convey our support for these flags. They were private speech and that triggers the obligations of viewpoint neutrality under the First Amendment. As we've noted, the opinion was unanimous, but there were a number of separate concurrences that some of which kind of read like dissents. So Justice Kavanaugh wanted to remind everyone that it does not violate the Establishment Clause to treat religious groups the same as secular entities, kind of. And if you did not know where he was voting on Carson versus Macon,

now you do. Yeah, that's the case about whether Maine has to offer their tuition credits for students to attend private religious schools. So we're awaiting the decision in that case, but no question. But we know where one vote is. Right. Well, we know where five votes are, to be clear. Well, true. At least five. But we now have a leak about where the fifth vote is. Right.

So Justice Alito wrote separately to say that he hates Justice Breyer's multi-factor test. Again, stay mad, sustain rage. And he indicated he would revisit the government speech doctrine. And his view is that government speech occurs if, but only if, a government purposefully expresses a message of its own through persons authorized to speak on its behalf. And in doing so, does not rely on a means that abridges private speech. This would give private actors, like, hmm, praying football coaches, a wide berth. Justice Gorsuch, for his part, wrote to say that the concerns about violating the Establishment Clause are rooted in the mistake the court made in Lemon

versus Kurtzman and that the court should just overrule it. No one's using it anyways. Stereo decisis, use it or lose it. To me, the biggest part of Shurtleff versus Boston is sort of what it augurs for Kennedy versus Bremerton School District, which had been argued the week before. And so I don't think you can read this opinion without reflecting on the oral argument in Kennedy and sort of seeing how people are lining up on some of these questions because they were sort of raised repeatedly again in Kennedy. One thing that this did make me wonder about those cases is if the religious claims win in both cases, is there a chance even though those arguments seemed really divided that like they're unanimous too? Like, I mean, I don't think that's true about Kennedy. I'm not even positive,

honestly, that coach wins in Kennedy, although I know that you guys thought that. I think there's, I think that Kavanaugh being so in play, like I actually think raises some questions, but I assumed that we would have, you know, the three dissenters in Carson versus Macon to like, did they all try to get on board with like Maine's of – I mean, as I say this, I cannot imagine, based on Kate's tenor and those arguments, that she is on board with that. Is this more appeasement? I mean, like, are they, like, doing appeasement on government speech to avoid bigger issues on the religion clauses? I don't know. Yeah.

Yeah. And I don't think that's a potential path in Carson. No, but Kennedy, it could be, like, really sort of shutting down or narrowing government speech in order to preserve shards of the establishment. Yeah, that seems possible. But as I say it, I think the Carson is certainly not unanimous, although it does seem like the religious goals will definitely prevail. There was another opinion that we wanted to highlight. This one is not a Supreme Court opinion. It's an opinion by the U.S. Court of Appeals for the Sixth Circuit. And it's pretty wild. And it connects to some court culture that

we've previously covered. The case involves someone who decided to make a satirical Facebook post that advertised services by the police that were, again, clearly satirical. So like the post said, like, come to our police van and get an abortion. It's just like not right. It's like not funny. It's not. But it's obviously satire. Anyways, the police officers don't like this and they decide to arrest the guy for making a satirical Facebook post. Obviously, you can't do that.

Police officers can't arrest you for shitposting. If they could, then it would be Donald Trump and Ginny Thomas living off of barges at Gitmo awaiting their trials for sedition. Anyways, so the Facebook poster who's arrested sued the police officers and is like, this violates the Constitution, you dolts, like arresting me for a Facebook post. And in a pretty stunning opinion, the Sixth Circuit said, actually, that's not clear. And it's so unclear whether the Constitution prohibits police officers from arresting you for a satirical Facebook post that the officers are entitled to qualified immunity. They're immune from suit because it's not clearly established whether their conduct violates the Constitution. Okay, insert upside down smiley face emoji here.

This opinion is unanimous. It is written by a Trump appointee, joined by another Trump appointee. It quotes Barry Weiss's sub-snack, as all judicial opinions do. Or should, at least. this panel, and they're all Republican appointees, but two of them have in their chambers law clerks who also happen to be the Stanford Law School students who tried to prevent another student from graduating after that student shared a satirical event poster mocking the Federalist Society. Shut the front door. Oh, no. We are going down this rabbit hole because the poster, you might recall, mocked the Federalist Society for its connections to the January 6th insurrection,

advertising a fake event that was like, the Federalist Society is going to discuss whether coups are cool under the Constitution. Chick-fil-A will be served. Exactly. And the Federalist Society student officers filed a complaint, a university complaint against a student who made that poster, putting the student's diploma on hold. And those Federal federal society officers who went after a fellow student for satire are now working in chambers who are deciding cases that say it's not clear whether the constitution prohibits police officers from going after people for satire you gotta give them credit for consistency you can't you cannot make this up that's's wow. You cannot. And I feel like this just almost perfectly encapsulates what I had ranted about when we were discussing this episode previously, which is about the asymmetric pipeline for

clerkships that currently exists. And, you know, we are coming up to clerkship season when a bunch of law students are going to be applying. And I just I do not yet have the words for what I want to say about this. So in other court culture news, on Monday, the Supreme Court hosted a belated memorial for the late, great Justice John Paul Stevens. And again, the Supreme Court bar typically hosts such a memorial when a justice, in this case a retired justice, passes away. And it allows friends and family and clerks to gather for a ceremony that honors the justice and features the entry into the historical record and publication of a memorial resolution. And as many of you know, Justice Stevens passed away in July 2019, I think just shortly after we began doing this podcast. But because of the pandemic and COVID delays, this ceremony was postponed. And so it was finally able to occur this week. And Kate Shaw, you were a former Stevens clerk. Did you get to attend this?

Did you get to? No. So sort of heartbreakingly, I was already committed to give a talk at Cornell that day when this thing had moved a bunch of times and it finally landed on Monday. And so I was unable to attend, but it was apparently really beautiful. The justices took the bench. Attorney General Garland spoke. I will say the two-year delay meant it was Attorney General Garland as opposed to Attorney General Barr who spoke. So I think that's actually- Small mercies. Yeah, like a silver lining. Pandemic had an upshot. Exactly. Former law clerks, including Eduardo Penalver, Damian Williams, who's the U.S. attorney

in the Southern District of New York, spoke. Justice Stevens' granddaughter, Hannah Mullen, who's a civil rights lawyer and also a friend of the podcast, gave a lovely speech in which she talked about Justice Stevens as both a grandfather and a jurist, describing him in both roles as, and I'm going to quote her here, tenacious and empathetic and observant and funny, noting that his belief in spirited competition between equals was what made him hate bullies. He strove to see each person and their circumstances as unique, imbuing him with an instinctive sympathy for the underdog. So it sounds like a really, really lovely event and actually is all available as video. It was live streamed on C-SPAN and actually the recording is available. So with the Dobbs League, I haven't had a chance to watch it, but I'm going to watch it later today. And maybe I'll tweet the link so that people can do the same if they're interested. So the ceremony was Monday and the Politico story broke at like, I don't know what, 8.30, 9pm or something. So the ceremony was Monday, and the Politico story broke at like, I don't know, 8.30, 9 p.m. or something.

So the ceremony was done by afternoon. But it sounded like it was in retrospect kind of clear that the justices already, like something was up. Like there was like, they knew they had probably been contacted for comment. And so Justice Alito looked even angrier than usual on the bench in this like, you know, lovely, beautiful remembrance event. And so in retrospect, that's why probably, almost certainly. But yeah, so back to the draft leak. Okay, so we've had a little bit of time. Obviously, we were working at lightning speed to read and digest the massive opinion. And then for me to like, hop on the fungus from the bus because of the aforementioned talk at Cornell I was on my way back from at the only time the three of us could get our schedules to align. So maybe we want to flag a couple of things that we didn't really have we talked about the case a couple of times, I think, you know, basically arguing equal protection as a distinct and alternative basis for the abortion

right recognized in Roe. But, you know, that equal protection claim not at all present in Roe and present in Casey, but not fully developed as you all fully developed it in your fantastic brief. And Alito, to his credit, like mentions the equal protection argument, but then just does an embarrassingly cursory and terrible one-paragraph dismissal of the claim. home to house the abortion right. He just sort of focused on this notion that she had that I think other historians and commentators later debunked that, you know, there was some kind of political settlement in the offing and the court's decision really stifled it. So that, yeah, he completely dismissed the prospect of equal protection. And I think more importantly, doubled down on the Godaldig line of reasoning that I think a lot of people rightly say is completely messed up and wrong.

And the Godoldig line of reasoning, for people who might not be familiar, Godoldig is the case that said discrimination on the basis of pregnancy is not discrimination on the basis of sex, because pregnancy is an objective biological fact. And, you know, people who are advantaged, if there's discrimination against pregnancy, include both men and women, and therefore discrimination on the basis of pregnancy can't be discrimination on the basis of sex. I mean, the opinion, the reasoning is, as you say,

has been debunked many times over. Well, it's also been debunked by the court. I mean, essentially the de Guadaldig reasoning is that because not all women are pregnant, this isn't sex discrimination. Right, the distinction is between pregnant people and non-pregnant people, not men and women. Sorry, go on, Melissa.

And the court, in a decision written by Rehnquist in Hibbs, basically says that's not the case. And then it's reiterated. I mean, it says that in Hibbs. It's also, I think, part of the rationale that Ginsburg offers in the United States versus Virginia, where, I mean, she's discrediting Godalding and that whole line. And so he completely ignores that. It's like equal protection doctrine on sex discrimination ends with Craig versus Boren and Godalding, even though there are all of these cases afterwards. Those cases are deeply rooted in our nation's history and tradition, Melissa.

Our nation's history and tradition of coverture. Of denying rights to women. Of denying rights to women. That's great. That's great. Can I also note that Lawrence Tribe, who is a professor emeritus at Harvard Law School, who is also one of the individuals cited by the court,

also wrote a great op-ed in the Boston Globe where he noted there is a kind of intellectual incoherence in the analysis that Justice Alito offers. For example, he goes on this whole riff about unenumerated rights and compares it to quote unquote text-based rights, but says that the text-based rights that we have to take seriously occur and are present in

amendments one through eight. But there are some other amendments, including the Ninth Amendment, as Professor Tribe notes. And the Ninth Amendment is very clear that just because something is enumerated doesn't mean the enumeration exhausts the possibility of other rights being recognized. And he doesn't even touch it. He, Justice Alito, doesn't even touch it, doesn't even acknowledge it. And again, I think a real absence, incoherence in the opinion, just to sort of skirt over that. I mean, it's so instrumental. It's so itinerant.

And again, selective about the kinds of constitutional texts and provisions it's going to invoke. And while we're piling on about the, you know, decisions reasoning, I'd like to add some more. So the opinion is full of accusations that Roe is an exercise in Planned Parenthood versus Casey is an exercise in judicial policymaking and imposing judicial preferences that aren't rooted in the Constitution's text or like history or all this other stuff. But then with the other stroke of the pen, Justice Alito says, well, abortion is different because like it involves a fetus. And it's like, well, where is that distinction in the Constitution's text or history, right? Like that's just also an exercise of judicial policymaking and line drawing. And, you know, that's like some of adjudication involves that. And you can't escape that when you are trying to define like what fundamental rights are protected by

the Constitution. So just like you are displaying it. Okay, right. I've got another that we didn't really get to yesterday in the emergency episode, which is that there is a lengthy discussion of the history of criminalization of abortion that historians have been sort of savage in their debunking of just in a couple of days. Savage. Since the opinion leaked. Yeah, it's been – Cue Megan Thee Stallion. Yes, savage.

He elides this really important distinction, which is in many, many states that had prohibitions of various sorts on abortion, the laws distinguish between a quick fetus or post-quickened, which is somewhere in the 16, 18-something week range most likely. And some states did prohibit abortion following quickening. And that's very different from prohibiting all abortion. And quickening is the point in a pregnancy, according to the common law tradition, where fetal movement can distinctions. And none of that is at all acknowledged in the Alito opinion. And again, he suggests that there was this like widespread, virtually uniform common law tradition of criminalization of abortion, which is just flatly wrong. Well, it also, again, misses another point. Like the criminalization of abortion occurs primarily after the Civil War, primarily at the behest of doctors who are professionalizing their profession, essentially, and trying to sort of keep midwives and faith healers out. And it is actually rooted in a kind of demographic anxiety about the fact that immigrant women and formerly enslaved women are reproducing at a rapid clip and native

born white women are contracepting and trying to keep their families to manageable sizes because they want, quote unquote, voluntary motherhood. And so the criminalization of abortion and contraception really dovetails with this demographic anxiety that the complexion, literally the complexion of the country is changing. And that's completely overlooked. And again, the sort of armchair Supreme Court history that both Justice Alito and Justice Thomas engage in. And the box concurrence is nothing but armchair history. It's selective. And it cherry picks. And they don't deal with these other analyses, these other treatments. And it's bad. It's bad history. And someone made the observation, and I'm sorry for not remembering in order to credit who it was,

that in some ways, Alito is going to be a massive beneficiary of this leak in that there has been such sustained engagement by real experts with the text of the draft opinion in ways that if he cares, he will refine in order to strengthen some

of the descriptions and claims in the opinion. And it will emerge less – I mean, it will still be a terrible opinion, I am sure. But it will be unassailable. But it will be less vulnerable to some of these attacks. You know, it reminds me there have been these occasional academic proposals to do like notice and comment judicial decision making the same way when agencies are going to issue a regulation. They put out a proposal, the public provides input, and then they incorporate all that and finalize the rule that judicial opinions

should do something similar. Of course, we don't in our system, in the federal system. But in a way, that's actually what this is going to be, I presume, because I'm sure his law clerks are reading the commentary carefully. And it will redound to the benefit of the opinion in terms of, again, at least removing some of these like obvious misstatements and errors and weaknesses in the reasoning and discussion of history. Well, and it will in your to his benefit in another way as well, which is to the extent the final opinion overruling row comes out, and it doesn't contain as much of the insanity that this current draft does some of the reporting, maybe a lot of the reporting,

will be all of the things that the Supreme Court didn't say or didn't do, you know, that the draft did. And I worry that that might obscure or occlude the fact that the bottom line result is still the same. I have been thinking about this a lot, that some of this is, I imagine, will be rolled back. And that's like one possible theory for why it's out at all, right? Like to sort of, to get the public extremely worked up about not just abortion, but kind of really terrified of what other dominoes

there may be to fall. And if the final opinion pulls back, that exactly as you just predicted, Leah, there's going to be some like collective sigh of relief and like kind of commentary. That happens every time an abortion opinion comes out. Like, I mean, like, oh, they didn't overrule Roe, but the chief justice actually returned us to the Casey standard. Still a victory. I mean, like, oh, they didn't overrule Roe, but the Chief Justice actually returned us to the Casey standard. Still a victory. I mean, like, that's the move. They didn't order all of the women to the camps now. Win. Feminism. Right. So certainly if it ends up the case that Roberts has a concurrency he peels off a vote for,

then absolutely. It'll make June medicals, sort of collective sigh of relief, just look like child's play in terms of what we'll see here. I think even if it normalizes and sort of sets expectations like this is what's going to happen, it kind of takes the air out of the explosive announcement in June, which I think is when you want it closer to the midterms. I mean, if you're thinking about the political payoff, if there is any and there's any silver lining in something like this, it is in channeling energy and directing people to object in a politically useful way. And I think this sort of makes that impossible.

So we've kind of slipped into going back into what I wanted to return to, which is the rank speculation about what's happening, how we got this leak. So as the Chief Justice's statement indicated, you know, the marshal of the court is going to be looking into this. This is like when Buckingham Palace is like, we're going to have a diversity czar. We're going to find out who called, who asked about archie's complexion nothing is going to happen i mean a part of me does wonder like what that's going to look like having the marshall look into this like are they going to go into the justices the justice family is right like a part of me just wondering through their trash like how much is going to happen there um but two additional thoughts came to mind and i wanted to get your take on them. Okay, so one is – I'm listening.

It's a February draft, and it's released now in May. And, you know, perhaps this could be Politico protecting their source, right? Maybe they did get it earlier in February or March or whenever, and they didn't want to disclose the identity of the person, and so they waited. But it also did make me wonder whether that was a sign that the leaker was not someone who actually had access to the drafts and the revisions, if the only draft that they had was the initial draft circulated in February that's shared in April. That might mean it's a draft that was at home and a roommate or a spouse or a partner or someone like that had access to it because they didn't have access to the revision or the second draft that circulated. So I'm trying to help the marshal out. Playing Nancy Drew here. The case of the leaked opinion. Right.

And then I also had another conspiracy theory. Okay. So last episode, our emergency episode, we discussed the opinion assignment on the premise that it was Justice Thomas who assigned the opinion. And I firmly believe that Justice Thomas would have had some role in deciding who got this opinion, because if the chief wanted to decide the case on other grounds, even if his bottom line vote was the same as the bottom line vote of the five who wanted to overrule Roe, it would be strange for the chief justice just to assign the opinion when the reasoning of the five differed from his own, which means Justice Thomas would be involved. But what if the Chief Justice was also involved in this because, again, his bottom line vote is the same, so he's technically in the majority? And what if he wanted to assign the opinion to Sam Alito, knowing that Sam Alito would be unable to restrain himself from writing the most insane, the most insane absolutist shit that would be most likely to turn off a potential justice. Brett Kavanaugh. And he thought, look, if anyone could lose the majority, it would be Sam. So he's like, yeah, Clarence, give it to Sam. He deserves this

one. What do you think? Oh, my God. Do you remember our episode with Joan Biskupic? We called it five-dimensional chess. I love this idea. I think this is a great theory. I also don't. I think it's really interesting. I also don't know. I'm sure you're right. He consults with Thomas on this. But if the chief is voting to reverse, the chief gets to make the assignment. I don't think he has to like say, I'm obviously not voting, I'm sure I don't wanna overturn Roe.

Like it is, do we uphold the Mississippi law or not? So I think it actually is within his power, no question to make the assignment, even if he does it in some consultation. So you think he just gave it, he gave it to Alito. This is supporting my theory. Exactly for the reasons that Leah just

walked through, but maybe just without. He's in the majority and he's like, he's playing everyone. He's in the middle alone and he's playing everyone. And at conference he's like, I need to see how it writes, but yeah, maybe I'm on board. I'm sure, Sam, you could write an opinion that I would

join. I'm sure you could do this one, Sam. And then when he sees it, he walks into Brett's chambers and is like, coach, we can't do this. Like, this is too far. I did not see this coming. Leah, those are brilliant. Yeah. Absolutely. I'm telling you, Marshall, hire me. I will be your outside consultant. You're like Encyclopedia Brown. I love it.

No, but that doesn't tell us that you think that that also means that the chief has something to do with the legal. No, no, no, no, no, no, no. Oh, no, no. Two very different theories. Developing a fuller picture about what happened could aid the Marshalls investigation. Well, I think he is right about a third party, not necessarily in the court ecosystem, but adjacent to it, perhaps having access to this one opinion. And this is the first, right? This is like the primal scream that emerges from Sam Alito's, like, cold. I'm sorry, when you say primal scream, that refers to the tradition at Harvard where the night before finals, all the students run naked around the yard screaming. And so we just can't have that. Oh, gosh. Okay. Going back to the conspiracy theory, theorizing, as Michelle Visage would say, the investigation continues. Well, so we also have to do one more last thing. So just to be clear, it's not just

us dunking on Justice Alito for the historical errors that he made in his draft opinion. We are also happy to cop to our own errors. So in our April recap episode, we talked about some of the pending hearings for various circuit court judges. And we noted that the ones that were pending a hearing were African-American judges. It turns out, and again, I'm going to take the fall for this. Reggie John Page, he does the best work he can. Sometimes he makes mistakes, but ultimately, I'm responsible. And I was responsible for this segment. You're a kind and benevolent supervisor. It's true.

And you wanted to take the fall. We keep him on the show, right? Like great bosses. He is here to learn, right? He's here to learn. Mistakes are part of learning. And I feel like I have to model for him. Like, you know, this is how you do, like, this is how you cop to an error, Reggie Jean.

And when you make mistakes with me, like, I expect you to fix them. So I was responsible for this. And I was using a confirmation nominations tracker that at the time I thought was up to date. It turns out it was not up to date. It got updated literally the day after we taped our episode. And in fact, a couple of the judges that we mentioned were still waiting for their hearings, had actually had their hearings. So this is on me. My bad.

But none of them have been confirmed. The larger point is that they were nominated months ago, all of them. But none of them have been confirmed. The larger point is that they were nominated months ago, all of them. Not a single one has been confirmed. Some had hearings we suggested hadn't, and a couple have actually had committee votes. But none confirmed by the full Senate. The larger point remains. But still, my bad. I checked two sources, neither of them. I think they were actually sourcing each other. And so maybe that explains why they're both now up to date. But in any event, please don't take this out on Regé-Jean Page. He has a hard enough time being beautiful and doing this work for us. So my bad. I'm sorry. And we will do better in the future. So thank you for our very kind

listeners who alerted us to this. They are fantastic and we appreciate their grace and their kindness. That is probably all we have time for today. So we'll close it out. Strict Scrutiny is a Crooked Media production hosted and executive produced by Kate Shaw, Melissa Murray, and me, Leah Littman. Produced and edited by Melody Rowell. Audio engineering by Kyle Seglin, music by Eddie Cooper, production support from Michael Martinez, Sandy Gerard, and Ari Schwartz, digital support from Amelia Montooth. And thanks to Catherine Fink for stepping in to produce this episode while Mel Washington Post reported, and I quote, a person close to the court's conservative members, end quote, says there's still a five-member

majority to overrule Roe. But don't worry, it gets better. The Post continued, and again I quote, that the five-member majority to strike Roe remains intact, according to three conservatives close to the court, end quote. So in case you were wondering who was behind these leaks, they're now identifying themselves in the press. It's the conservative wing of the court. They literally feel emboldened enough not just to overrule Roe and take away constitutional rights, but also to identify themselves as the leakers. Marshall, they've certainly made your job easier. But, as Michelle Visage would say, the investigation continues.