Strict Scrutiny - Superminority Status

Episode Date: August 9, 2021

Melissa and Leah are joined by Easha Anand (MacArthur Justice Center) and Kate Levine (Cardozo University School of Law) to recap the big criminal law cases from last term. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. And I'm Leah Lippman. So we have already brought you our term recap for the term that ended, but the reality is there is just way too

much in the last term for us to cover in an hour or in 80 minutes as the case may be. And we wanted to do a look back with the benefit of some additional time on the criminal law cases the court heard this past term and perhaps look ahead for the upcoming term. And to help us do that, we are delighted to have two very special guests. Our first guest is, drum roll, Isha Anand, Supreme Court and Appellate Counsel at the MacArthur Justice Center. Isha is a graduate of Berkeley Law, where she was once my student, even though she didn't take my class. I'm not mad.

Just disappointed. Just very disappointed, Isha. But Isha was a standout student at Berkeley Law, and she went on to clerk for Judge Paul Watford of the Ninth Circuit, and then later for Justice Sonia Sotomayor on the United States Supreme Court. So welcome, Isha. Thank you so much for having me. I'm a huge fan of the pod and of Leah's and Melissa's, and I'm really honored to be on here with our other special guests and listeners. Hopefully, you do not discount my takes entirely now that you know about my major judgment lapse of not taking a classroom summary when I have the chance in law school. We all make mistakes. It's fine.

I once complimented an opinion by Justice Gorsuch. Our second guest is Professor Kate Levine, a professor of law at Cardozo University School of Law and a big fan of cats, the NFL, and prosecuting our way out of police violence. Did I get that right, Kate? Almost on the nose, just wanted to add a few little things. Also a huge fan of seeing Stevie in human outfits every day on Twitter and the criminal legal system more generally. These are jokes in case our listeners didn't catch that. These are not really Kate Levine's interests, as you may find out soon. So consistent with some of our reflections about the last term, we're going to discuss both cases that were on the court's regular docket, that is cases that were argued and had full briefing, as well as cases on the court's shadow docket, cases that

weren't argued and did not have full briefing. Because some of the generalizations you might make based on the regular docket don't necessarily hold up on the shadow docket. So maybe let's start with some themes or cases we wanted to highlight from the regular docket. All go first. Question. Neil Gorsuch, best friend or bestest friend to criminal defendants? Does anyone want to answer that one? Leah, you are wearing a t-shirt that says burning for textualism. So me thinks you may have some thoughts about this anyway. I do.

Shocking. I'm shocked. I'm really shocked. told that, you know, Neil Gorsuch is, you know, the friend of the little guy, you know, his skepticism of excessive government power would redound to the benefit of criminal defendants. Any time. But not ice truckers. But not ice truckers. Any time Neil Gorsuch votes for a criminal defendant or joins, you know, the Democratic appointed justices, we are treated to long paeans to the libertarian minded Justice Gorsuch, who is, again, the friend of criminal defendants. And I just feel insulted on behalf of Sonia Sotomayor every single time I hear one of those takes, as well as basically all people who follow the court, because it just drives me nuts. Like, yes, you know, Neil Gorsuch's like erratic approach to the law will occasionally lead him to vote for criminal

defendants. But other times it leads him to these bonkers rulings against them, like in Torres versus Madrid, when he would have held that the police shooting someone isn't a seizure. Like, that's just one example. Isha, Kate, Leah has laid the scene. Do you agree? Justice Gorsuch, BFF of criminal defendants or BBFF of criminal defendants? I would definitely say he's a better friend to criminal defendants than some, but, and maybe my, my lack of- But is the bar low? Is the bar low, Kate? Well, I was going to say, you know, my, maybe the cynicism or the lack of Supreme Court enthusiasm

that I bring to this, I bring with my outside baseball to this group is, I don't mean enthusiasm for all things Supreme Court, I mean for the Supreme Court as a body. I wasn't particularly surprised to find that, you know, Gorsuch's friendship with defendants is only based, as Aaliyah said so well, on his sort of erratic approach to law. But I will say that I found his dissent in Torres to be particularly egregious and not maybe, I mean, yes, in the ways that Leah has already mentioned, that he doesn't believe shooting someone is a seizure, but also in the way that he sort of refers to the defendant in sort of these just, it's a small, but it shows me the way he thinks about criminal defendants.

So basically the police in this case didn't have a warrant for Ms. Torres. And what he basically says is, well, they weren't serving the warrant that they had for her. She wasn't there. They weren't there for that warrant. She had another warrant out against her. And so sort of the snarky idea being like, she's not innocent. They just didn't happen to be there for her rather than the, you know, if you're going to make a point about this, make the point that why can't the police get to find the person that they're actually looking for? criminal defendant and then shooting a person who had absolutely nothing to do with that. Instead, he's basically saying, you know, she's no angel. So that kind of gives me the sense that,

you know, his jurisprudence may come and go with whatever fetish he has at the moment, but he's not a friend. You know, I know it was said in jest, but he's certainly no BFF to criminal defendants. So Isha, speaking specifically of the Torres case, you have some experience with this. So do you want to tell us a little bit about your attachment to this case and your views of Neil Gorsuch, friend to criminal defendants or not? Gladly. So what Melissa is referring to is this was a case that I litigated along with some brilliant colleagues when I was at my old job at Oreck. And I was excited about the win, but

really stunned, as Kate says, to read Justice Scores such as dissent, right? So the line that you guys quoted on this podcast, which is just so infuriating, is this one. The common law offers a vast legal library. We have no business wandering about and randomly grabbing volumes off the shelf, plucking out passages we like, scratching out bits we don't, all before pasting our own new pastiche into the U.S. report. So this reads like something Justice Stevens wrote, not something that Justice Gorsuch wrote. And it's fundamentally a critique that's leveled at the entire originalist enterprise. Any application of ye olde common law to the present day is of necessity a, quote, pastiche in Justice Gorsuch's words. So, yeah, at the time of the founding, private individuals, not police officers, effectuated most arrests,

right? Public police forces were rare. And at the time of the founding, those sorts of arrests were usually not effectuated by guns and bullets, right? The chief justice's majority opinion in Torres draws an analogy to a 17th century English case where someone was arrested by being touched with the tip of a mace, you know, like the queen of clubs or whatever. But those are the kinds of problems that we confront any time we use an originalist methodology to address problems in the modern world. And to hear Justice Gorsuch lambast this sort of pastiche approach in this case. And particularly since this is a case where yield common law is actually pretty clear, like the dictionary definitions are pretty clear that a seizure, that's sort of the word used in the Fourth Amendment, the term seizure, they're pretty

clear a seizure is an arrest. And the cases are pretty clear that touching, quote, but with the tip of one's finger is an arrest. So especially in this case, where the history is actually much less equivocal than in many, I found it totally odd to read this dissent. And then the other thing I found a little bit strange about this case, and I'm curious to hear your takes, Leah and Melissa, is the dissent's criticism that today's decision is maybe explained by, quote, an impulse that individuals like Ms. Torres should be able to sue for damages. And the majority takes these great pains to, like, rebut that. They say there's no call for such surmise. But would it be so insane if some part of the motivation here were, we think it unlikely,

the founders would want to leave someone without a remedy in this circumstance. And so to the extent there's ambiguity in the dictionaries and the founding era case law, it's a tiebreak to think like this is the kind of thing that maybe the founders were talking about. Ms. Torres is the kind of person they maybe were interested in protecting. And I think it's such a sign of the kind of dialogue within the conservative supermajority that even the suggestion that this would be such a tiebreak is treated as this total insult to vehemently deny. I don't have more to add to

that, Isha. I mean, I think that's a really interesting and evocative statement of both the case and all of the different threads going through it. I will say that the way you framed it, it suggests that Justice Gorsuch is not simply no friend to criminal defendants or not the friend he's been portrayed as, but he's actually no friend to libraries as well. Who actually approaches library research in this way, just like crossing things out? It wouldn't even occur to me. So when you read that, I had actually- He is Gaston from Beauty and the Beast, who reads books anyways. No pictures. Springs like Gaston.

It's striking that that's the analogy that he used to talk about this. And the idea, again, like the sort of itinerant commitment to originalism, when originalism works in favor of the defendant, it doesn't work for him. So again, a lot going on in that case. It's particularly offensive when you think about all the stuff you have to wade through as a reader of his opinions in cases like Carpenter, when he's doing the trespass doctrine and, you know, one has to wade through his originalism, which I know is the point you were making, Isha, as well. So yeah, fully on board there. And one other thing that he did that I thought was sort of interesting beside the point and sort of sneaky was to basically say,

you know, I don't like that the majority is trying to give this woman an ability to sue here, but also, you know, this is, in most cases, 1983 is still going to be out of reach for most litigants, so the majority really isn't doing that much. Even if that's true, he knows as well as anyone who does any sort of Fourth Amendment case reading that a big purpose of the Supreme Court jurisprudence is to deter official misconduct, right? It's not just about bringing suit. It's also about deterring official misconduct. And there's certainly a hope that a clear rule, like if you touch someone that's a seizure, if that rule is clear, that the police may have an ability to perform less misconduct. I'm somewhat skeptical of that

as I'm saying it, but it is a nice clear rule that the majority put out there. I'm, you know, somewhat skeptical of that as I'm saying it, but it is a nice, clear rule that the majority put out there. I wish they didn't have to talk about shooing a mace, whatever the heck any of that means, but they got to a good rule. But at least Neil Gorsuch told us that the Roberts court has simply made it too easy to sue the police for damages and that they are really motivated by a desire to do that. Hearing you all, you know, describe Justice Gorsuch's dissent in Torres, it really has some peak Lito vibes to it, right? Suggesting that in most cases, people suing the police should lose, that the court might be motivated by other concerns, you know, a desire to make it easier to sue the police and that its gesture is more symbolic than practical, et cetera, et cetera. But, you know, I take it from Torres that, okay, maybe Justice

Gorsuch isn't great on rights for people interacting with the criminal justice system, but surely he's great on remedies, right, Isha? Yeah. I wish, I wish, Leah, I wish. You know, Leah, you've sort of written about the subject and talked about it on this podcast, the course pension for pairing the'll hold in Rahif that someone prosecuted for possessing a firearm when he shouldn't be, you know, because he's a felon or a non-citizen or whatever, can only be convicted if he knew he was in the category of folks barred from possessing that firearm. But then this term in United States versus Gary and Greer versus United States, we'll make clear you can't actually get relief on that basis. Yes, we'll hold in Ramos versus Louisiana that you have the right to a unanimous jury, state defendants, but then this term will come back in Edwards versus Vannoy and say, eh, actually, nobody's actually in prison. Sometimes serving life sentences

can get out on that basis. Oh, and by the way, we'll eliminate yet another avenue for people that even get any kind of heinous remedy. And we'll hold in Montgomery v. Louisiana that life without parole is reserved for that rare, quote, permanently incorrigible juvenile. But we'll say that at sentencing, which is the place where you sort of give effect to that guarantee, the sentencer can basically ignore it and so on and so forth. So this court, even when they talk a big game on rights, when it comes to actually enforcing those rights through habeas, through civil liability, even in Gary and Greer on direct appeal, kind of no dice. And Justice Gorsuch

joined in all of those opinions. I think that's just a general theme, as you say, Isha. And it's not limited to the criminal law docket. I mean, you could imagine, for example, in the reproductive rights docket, like the court upholding a right to choose an abortion, but actually making it so difficult for individuals to actually exercise that by in turn upholding all of these laws that acknowledge the right, but nonetheless restrict it in ways that make it all but impossible to exercise it. So again, all of this is to say that there is the recognition of rights, but then there's actually the whole idea of actually using those rights.

And that's what seems to be in short supply here. You've convinced me Justice Gorsuch is no friend to the criminal defendant, at least not in this term, and certainly not in the way he was touted at his confirmation hearings. Maybe a frenemy, though? A frenemy. I like this. What about the other justices? Because we had a couple of terms ago, Justice Kavanaugh writing that, you know, big blazing opinion in Flowers versus Mississippi. Is he a friend to criminal defendants? Melissa, I just, I'm not sure you're going to like my answer here. Don't disabuse me of all of my intuitions. So Kavanaugh is actually the one responsible for writing the trio of remedies opinions that I mentioned. And I want to actually take a beat to talk a little bit more about two of those,

Edwards and Jones, because I find that pairing really fascinating, not just for what it says about Justice Kavanaugh's approach to remedies, but also what it says about his approach to sorry decisis. In Jones v. Mississippi, and I should caveat, this was a case litigated by my boss, David Shapiro, who did, I think, as much as possibly could have been done to stave off disaster in this case. So in Jones, Justice Kavanaugh interprets a pair of cases, Montgomery versus Louisiana and Miller versus Alabama, that limit life without parole to, as we said, the quote, rare juvenile offender who is permanently incorrigible. And he finds that there's no reason that a court actually has to conclude that someone is permanently incorrigible. But he insists that he is not overruling those prior cases and is,

in fact, being absolutely loyal to prior precedent, something that's pretty hard to swallow and that Justice Thomas actually calls out in concurrence, basically says, look, dude, we can all see what you're doing. Like, let's call a spade a spade. But then after bending over backwards to insist he would never overrule this prior case, even as he guts it in many respects, he pens Edwards versus Vannoy, where the question is whether the requirement that state criminal convictions be by unanimous jury, so the requirement that the court articulated in Ramos, whether that requirement is retroactive. And even though no one asked him to do it, and even though it is not necessary to the case, he goes ahead and just erases one of the two ways

in which a case can be declared retroactive. So literally not essential to the disposition, not something the parties are asking for, just decides to kind of erase this big chunk of precedent. The other conservative justices at least have this sort of professed orientation towards stare decisis, right? So you have on one end of the spectrum, the chief who has this great reverence, at least in theory, for precedent. And then the other end of the spectrum, you've got Justice's Gorsuch and Thomas, who basically say, sorry, it's like kind of a thumb on the scale. But if it's wrong, you should just ignore it. And then you've got Justice Kavanaugh, who takes like a I called it a Marie Kondo approach. Is it sparking joy?

I'm exaggerating slightly, but, you know, his vision for stare decisis, what he articulates in, for instance, his Ramos concurrence is very kind of on the one hand, on the other hand, like depending on the circumstances, the weight precedent should be given really differs. You know, maybe that's just being honest. That's sort of what all the justices are doing anyway. And maybe they shouldn't pretend to have a uniform view of stare decisis. And, you know, I guess on balance, I'm grateful. It's really important for litigants that Jones didn't overrule Montgomery. But the pairing of Edwards and Jones just makes really clear that Justice Kavanaugh, he's kind of a wild card for litigants, I think. Kate, I know you also had some thoughts on Jones in particular.

Yeah, I did. And actually, I want to ask Isha a question about her thoughts. I mean, one of my, the things that I was thinking about is sort of, there was this exciting, you know, Graham took the death penalty context and put it into the Elwha context. And so I'm always telling my criminal law students, like, you know, so important now we're applying the categorical standard to non-death sentences here and particularly for juveniles. And who knows, the sky's the limit maybe for this kind of litigation. So I'm wondering, you know, does this case mean and signal that we've sort of reached the horizon for, I think of it as the grand mind of cases. I know it's Miller that

most folks talk about when they're talking about Jones, but just this idea of applying categorical changes to non-death sort of life without parole sentences. I was hoping it would sort of, you know, go for life with parole sentences, or maybe it would be applied to people with mental illness or, you know, that kind of thing. And it seems like maybe that's not going to happen here, or do we think this is really cab into sort of the juvenile context and the incorrigibility idea? And then one thing I wanted to bring up, my colleague Catherine Miller has just written an article that talks a lot about Jones. And what she says is she thinks these cases are going to end up looking like the cases now that come from Jones, looking like the sort of pre-Furman lightning strike death penalty cases that are

just, there's so much discretion that we're going to end up with a lot of challenges, you know, about how arbitrary these cases are, which she was, you know, obviously saying as a negative and trying to think of ways to have the states be less arbitrary. But me coming, floating in from whatever planet I'm sitting on, I was like, oh, great. Maybe we'll get some, you know, maybe it's going to be impossible. They're going to have to revise this because this is going to become impossible under these lightning strike issues. So I'm just wondering what anyone thought about, thinks about either of those, those things. So sort of like, have we reached the horizon with the sort of categorical approach, but might there be a lot of litigation that reaches the court

in terms of, you know, the arbitrariness now of sentencing juveniles to LWAP without this incorrigibility finding? I think we've absolutely reached the ceiling, right? There are no five justices who would impose any sort of Eighth Amendment-based categorical prohibitions on non-death sentences. And I also don't think they will show any interest in policing arbitrariness. You know, it was only the chief justice who wrote separately in Graham to say he found the particular sentence in Graham disproportionate to the offense, given that it was a non-homicide offense. And he didn't think, you know, the facts warranted the imposition of life without parole on that particular offender. But I don't think there are five who would say that any particular sentence is disproportionate because I don't think there are five justices on the current court who believe that the Eighth Amendment contains any sort of proportionality

principle. And I just don't think either of those avenues is going to be open, at least for purposes of federal law claims at the U.S. Supreme Court. And I'll just add that even the chief, and it's still like, it hurts my heart every time I remember that getting the chief doesn't even get you to five anymore, but even the chief, um, I'm sort of puzzled by his decision to be in the majority in Montgomery and then the majority in Jones, right. That signals Jones is really a repudiation of the core of Montgomery. And so whatever feelings the chief had about juvenile offenders five years ago. Doesn't seem like he has them anymore. So even the chief's gram concurrence, I'm not so optimistic about.

That's a really good place, I think, to pivot. The Eighth Amendment was not something that was just isolated on the court's merits docket, but it was also a real issue on the court's shadow docket. And I'm thinking specifically of a bunch of cases that made their way to the Supreme Court regarding the Trump administration's rush to execute people in the waning days of the Trump presidency. As you know, there had been a halt to federal executions, but they were resumed during the Trump administration. Joe Biden ran on the platform of reinstating a moratorium on capital punishment, which he has yet to do.

But after Joe Biden was declared the victor in November 2020, the Trump administration continued its quest to execute prisoners. And so these cases made their way to the Supreme Court in a couple of different postures. So Leah, why don't you explain these two different approaches? Sure. So one were requests to vacate stays from the United States federal government, where lower courts had found that some of the claims that federal defendants had raised had some merit to them, and they stayed the executions to allow those claims to be explored and litigated. When that was the posture of the case, the Supreme Court cleared the way for all of the federal executions, granting the Trump administration's

request to vacate stays and carry out those executions. Then in some cases, the federal defendants themselves sought stays of executions where a court of appeals had vacated a stay or stated an injunction issued by a lower court, or the prisoner just sought a stay of execution and the court didn't grant any of those requests. These are a lot of cases. And in contrast to some of the hot takes we saw at the end of the term, there wasn't a lot of consensus on these cases. They all were pretty traditionally divided along ideological lines with conservatives on one side and liberals on the others. All right. So in United States versus Higgs, there were three liberals in dissent.

Again, Bernard versus United States, another three liberals dissenting. Rosen versus Montgomery, three liberals in dissent. And I wanted to call out specifically, given Isha's affiliation with her, Justice Sotomayor in her dissent in Higgs described the volume of executions and litigations. And she noted, after 17 years without a single federal execution, the government has executed 12 people since July. They are Daniel Lee, Wesley Perkey, Dustin Honkin, and she went on to say their names. And she then finished by saying, today, Dustin Hicks will become the 13th. To put that in historical context, the federal government will have executed more than three times as many people in the last six months than it had in the previous six decades. She also highlighted the stakes in these cases.

She said very provocatively, this is not justice. After waiting almost two decades to resume federal executions, the government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this court should have. It has not. Because the court continues this pattern today, I dissent. We highlighted this in the moment. This is a really fiery dissent, you know, presaging her I respectfully dissent for now. I don't even know if she's being respectful at this point. I mean, she seemed to have pretty much had it. She left the respectfully off. She did leave the respectfully off for that one. I assumed it was just because it was on the shadow docket.

But what can we say about these cases, Leah? Like, you know, they presented a range of different questions. What's the common thread linking them? You know, what is astonishing is that the court seemed to find no merit to any of them. And when you consider, you know, the sheer variety of claims that litigants were raising, as well as the novelty of some of the claims themselves, and in particular, the novel set of factual circumstances that gave rise to the claims. I think it's quite astonishing that the court didn't allow any of these claims to actually be aired before the execution proceeded. The court didn't allow any of the claims to be aired up the federal system. Some of the cases involved questions

about what it meant to implement a federal death sentence in the manner prescribed by the law of the state. Another involved questions about the Federal Death Penalty Act's prohibition on executing persons who are intellectually disabled. Another involved a very technical question concerning the savings clause, which allows federal prisoners to file habeas petitions in some circumstances where the statutory

restrictions on second or successive petitions don't allow them to file second or successive petitions. Others were unique to COVID. So some prisoners contracted COVID and they argued that executing them while they had COVID, you know, presented unique concerns about pain or other complications they might experience. Other challenges were to the new execution protocol that the federal government had to institute in order to begin carrying out executions. And there were just many claims. And again, many courts found that these claims had merit to them. And the Supreme Court just shut them all down, you know, essentially, as the Trump administration was going out the door. And in so doing, allow the Trump administration to carry out these executions.

And I think it was just astonishing when you look at, again, the volume of cases, the variety of claims, the speed at which they were litigated, and, you know, the sharp divisions on the court. And I think that's really what unites them. So Kate, what do you think of this portion of the shadow docket? I mean, so much activity on the death penalty front and all of it sort of, again, in circumstances that lead to a pretty sort of robust view of the death penalty and the state's prerogative to execute prisoners. Yeah, I mean, this may be a bit of a swerve, but I guess for me, what this does is increases my potentially unpopular, but already their rage at the Biden administration, because I see this as a really more of a political question, not political question with the Supreme Court, but something that the political

branches can and should be dealing with. I, you know, I guess, you know, what is interesting, as you've all now said, is how the court was split and not always split the same way in these cases. So there's definitely ways to parse that and find interesting things. But sort of as someone just coming from a, you know, get rid of the death penalty place. You know, Biden ran on it on a moratorium. He could have done something fast about this. He can commute the sentences now. And, you know, that you just combine that with his sort of with with his, you know,

the sending back the folks who've been let out of prison because of covid and not having done any pardons yet. And it just adds up to sort of exactly what I unfortunately expected, you know, the architect of the 90s crime bill to sort of be doing. So that's where my focus, frankly, has been in terms of these death penalty cases. And, you know, I understand that there's many priorities, but I only have one priority. And he's really, really disappointing me on that one. I was also going to highlight, in addition to the federal executions, there was also shadow docket activity concerning state death sentences. And in particular, in several decisions that the court issued on the

shadow docket, you know, where the Supreme Court reversed lower court decisions that had granted habeas relief to prisoners convicted in state court, the Supreme courts had granted their habeas petitions on the basis that their lawyers had been ineffective, and the Supreme Court reversed them all. And this is, as we have said, an area where the 6-3 conservative court really matters because it is a courtesy and a convention that it requires six votes to summarily reverse a decision of the lower court and with six conservatives, you know, you don't even have to try to negotiate to get one of the justices appointed by a democratic president to join summary reversal, which they have in the past. But again,

like this volume of reinstating death sentences was I think notable. We should also note that in addition to these death penalty cases that came up on the shadow docket, there were a number of cases that came up in conjunction with COVID and the plight of prisoners who were incarcerated during the pandemic. So one case to highlight is Valentine versus Collier, in which there was an injunction requiring a prison to take precautions against COVID. It was stayed by the Court of Appeals, and the Supreme Court refused to displace that stay, right? So, Leah, do you want to talk a little bit about this? This was a geriatric prison

in Southeast Texas that literally had been ravaged by COVID. And again, it was a tinderbox, as one of the briefs noted, for COVID-19, really dangerous conditions for prisoners during a raging pandemic. Yeah. And, you know, this is an instance where the district court kind of required the prison to institute very, very minimal guidelines, you know, that cohered with the CDC's recommendations in a prison that was full of people over the age of 65, you know, many of whom had conditions that exposed them to greater risk of COVID and more serious cases of COVID. And only Justices Sotomayor and Kagan noted their dissents in this case when the Supreme Court allowed the Court of Appeals to put on hold that injunction. And just, again, more activity on the shadow docket, a little bit more ideologically divided than I think some end of term commentary suggested.

Do we know why Justice Breyer did not come along for those dissents? I think at the time I speculated he was writing his retirement notice. Obviously, that has been debunked. So I guess I'll assume he was writing his book talking about how the court is apolitical and not ideological at the time. I mean, also, we've been beating up on Gorsuch as no BFF to criminal defendants. But I mean, Breyer is no hero either. He's often on the in the majority in a case against criminal defendants rights where you do get like a Gorsuch or some other weird friend dissenting along with the quote unquote liberal justices, which is, you know, one thing I kind of like about criminal law sometimes is that you can't predict these things,

you know, conservative, unconservative or liberal lines. But Breyer is, you know, just one more reason that I hope we get, you know, long memoirs coming out soon. Well, this is a nonpartisan podcast, so we take everyone down equally and without favor. So no worries. Okay, cool. Thanks. So Isha, not to belabor the COVID point for too long, let's pivot to something else where we also had a fair amount of activity, qualified immunity. And it's not just activity here on the court, but also something that people have been talking about in the real world. So can you tell us a little bit about your views of how the court addressed qualified immunity on the shadow docket? Yeah. So this is probably the most optimistic I'll get during this podcast. And then you guys can feel free to just

tear down and debunk all my optimism here. You know, this has been, this is kind of a banner year on the shadow docket for a certain set of civil rights practitioners. And to understand why I'm saying that takes some setting up because it's going to sound really, really minor until you look at the context of the last few years, right? To sort of set this up, the shadow docket, of course, is cases where the Supreme Court issues a decision without any briefing or argument. And historically, just about every term, the court has reserved at least a few slots on that docket, specifically for reversing lower courts that had the audacity to deny qualified immunity in a 1983 civil rights case. So a case against a police officer or a prison official where the lower

court said, yeah, you can go to trial. Just about every term, the Supreme Court takes a couple of these and is like, no, no, no, definitely can't go to trial against this person. And I would say there are very few other topic areas where the Supreme Court is nearly as aggressive about this kind of sheer error correction. And certainly I don't think there's any other topic area where the Supreme Court is quite so one-sided. I mean, rants of habeas relief come close in the qualified immunity context. And listeners, you can correct me if I'm wrong, but I think the last time the Supreme Court summarily reversed a grant of qualified immunity was October 10, 2013 in Tolan versus Cotton, asterisk sort of unless you count South versus Bauer, which is more a case about protection for prayer. The plaintiff

was kneeling in prayer when police officers broke into her home than qualified immunity. Okay, so it's a long windup, but I think it's important to have that context for why what seems like a pretty small victory is actually a really big deal. So this year, for the first time since, as I said, October term 2013, the Supreme Court summarily reversed a grant of qualified immunity to, in this case, correctional officials. So Trent Taylor spent six days in a pair of, quote, shockingly unsanitary cells, including one cell covered floor to ceiling in massive quantities of feces. And the Fifth Circuit said, qualified immunity, no case, squarely on point, saying this is not okay. And the Supreme Court reverses in this short per curiam. And it says something that shouldn't be remarkable, but really is given the court's cases in recent decades. It says, it is so obvious this was not okay. There was no exigency. There was no necessity. You usually

could have mitigated this harm. It is so obvious you don't actually need a case on point. And then to drive the point home, it then GVR'd, that is granted, vacated, and remanded, so essentially told the court to take another look at. Another Fifth Circuit case, McCoy v. Allamoo, also litigated by one of my colleagues, Danny Greenfield, where the petitioner was pepper sprayed by a correctional official at point blank range for basically no reason. This is really the first time in a long time that the Supreme Court has taken steps to suggest there might be such a thing as too much qualified immunity, as opposed to the dozens, plural cases where it has taken to signal there's no such thing as too much qualified immunity. And I guess one question is why, right? So as Melissa alluded to, maybe

it's a response to the public conversation around qualified immunity, which reached a pretty fevered pitch last term with the filing of dozens of petitions on really egregious facts, asking the court to overrule it. Maybe it's a response to the broader Black Lives Matter movement in the sense that, you know, we have to do something, immunity has gone in the sense that, you know, we have to do something. Immunity has gone really far. And, you know, some breadcrumbs for that view. The Supreme Court also summarily reversed in plaintiff's favor in a case called Lombardo versus City of St. Louis, which is a case where correctional officials kneeled on the back of an incarcerated man who was in handcuffs and leg irons and face down.

It's a prone asphyxiation case that is sort of heartbreakingly reminiscent of George Floyd's murder. And it did something, I'm not sure you'd characterize it as a summary reversal, it did something in a case called McKesson versus Doe, which was an attempt to hold DeRay McKesson personally liable for violence that happened at a Black Lives Matter protest. And so maybe these are the signs that like this incredibly high bound Supreme Court is somehow trying to be responsive in its slow, jerky, conservative way to these broader social trends. You know, it's a slightly weird way to respond to those conversations if that's what the Supreme Court is doing. So the overall qualified immunity conversation got a lot of traction when Justice Thomas, who as listeners know is not really a social justice warrior,

penned some dissents from denial expressing his conviction that it was a made-up doctrine. But Justice Thomas dissented without writing in Taylor v. Riojas, presumably because of his long-standing view that prison conditions don't fall within the ambit of the Eighth Amendment's ban on cruel and unusual punishment. So it's a little weird to pick a case to reinforce the limits of qualified immunity, where the main guy on the court for limiting qualified immunity has to tag out. And it's a little weird that none of these cases are actually about police officers, right? They're all about correctional officials. And maybe the justices have less solicitude for correctional officials for whatever reason, but it still feels like a very orthogonal

way to respond to the public sense that enough is enough when it comes to devaluing Black lives, which is very focused on policing in particular. So the final point I'll make on this one single rose in the shadow docket full of thorns, for Leah's kind of portmanteau pleasure, I just want to flag Justice Alito's remarkably unselfaware descendant, Taylor versus Riojas. Technically, it was a concurrence. Oh, was it a concurrence? Yeah. Yep. That's my boy, social justice warrior, Sam. He literally says, this isn't an issue that's divided the lower courts. We're not supposed to be in the business of fact-found error correction. Like majority for, I wagged my finger at the Zoom screen, you couldn't see it on the podcast. Bad on you majority for wading into this case. And of course,

literally those exact same words he uses in his Taylor versus Riojas writing are the exact words that could be used to describe case after case, including the ones that Leah just talked about, where the Supreme Court summarily reverses just to make sure this particular habeas petitioner does not get released. I mean, literally one of the cases Leah mentioned turns on a close reading of a single sentence in a state court opinion and what it means, the sort of close reading that will never come up again. And so for Justice Alito to kind of chastise the court for wading into this sort of fact-bound error correction in Taylor versus Riojas, Leah, what would you call Justice Alito

in this particular setting? It's tough. You're putting me on the spot. A few come to mind. Hypocriticalito is probably the one I'll go with. Maybe that's some clue as to why his skin is so good, despite the fact that he's in his 70s. He doesn't have to wade into the facts of these awful cases. He just can just sort of flick them off and then go put moisturizer on. I'm glad I'm not the only person who's noted this. Thank you, Kate. I hadn't noted it before I heard you say it, but it was an insight that meant a lot to me. I want to know his regime. Are we inviting Sam on the podcast to share his skincare regime? Is that an official invite? Only two. Melissa, I'm curious if you have a take on why the Supreme Court has been oddly and

uncharacteristically solicitous of incarcerated people in this one narrow respect in this one set of cases, and whether it has anything to do with the broader public conversations. I think it's a terrific question. I do think it is a reflection of the broader conversation. It's also worth noting there are a number of cert petitions in the pile this term that would have actually brought an actual qualified immunity case to the merits docket and the court passed on them as well. I think a reflection of the fact that there was an active debate happening in the political branches around qualified immunity. And so can I say with specificity that it is because there is this larger public conversation? Obviously, I can't.

But I mean, the idea that they are somehow hermetically sealed off from the rest of society, I mean, is obviously bogus. Like they know what's happening in society. I think their decisions on cert petitions reflect what is happening elsewhere in the government. And it wouldn't surprise me if their actions on the shadow docket with regard to qualified immunity also reflected that, you know, this was something of quite significant interest for a great number of people outside of 1 First Street. Isha, I thought your point about the solicitude for police over corrections officers, I mean, obviously don't know, but I thought it was really interesting and on point. And just a really interesting question just about that sort of hierarchy among law enforcement, because I could absolutely see that, that, you know, there's more comfort, you know, questioning corrections officers and, you know, why that is. I don't know. But but I thought it was really a good point.

Let's move on. Again, more activity on the shadow docket. I mean, all those folks were talking about this consensus driven, nonpartisan, semi-liberal, super woke court really missed everything that's happening on the shadow docket. But let me flag another case, Reysor versus DeSantis, which is a five to four decision with Justice Sotomayor in dissent. And here, this was a case that involved a challenge to the Florida legislature scheme, which required people to pay fines and fees before being able to regain their right to vote under the state's constitutional amendment that had re-enfranchised those with felony convictions. And a district court had enjoined that particular scheme, finding that it was essentially a poll tax and also void for vagueness since there was no way of figuring out how many

fines and fees were actually outstanding such that you could clear your debt and be re-enfranchised. The 11th Circuit went and bonk and stayed that decision, and the Supreme Court declined to disturb that stay. And Justice Sotomayor, again, issued a stinging dissent, noting that this court's order prevents thousands of otherwise eligible voters from participating in Florida's primary election simply because they are poor. And it allows the Court of Appeals for the 11th Circuit to disrupt Florida's election process just days before the July 20th voter registration deadline for the August primary, even though a

preliminary injunction had been in place for nearly a year and a federal district court had found the state's pay to vote scheme unconstitutional after an eight-day trial. I would grant the application to vacate the 11th Circuit's stay. This was a big dissent for her and a major issue that sort of brings together things that we have talked about on this podcast before. Voting rights, the whole crusade, I think, that is very effective in Florida, obviously, but is happening in other parts of the country to re-enfranchise those who have been formally convicted of felony offenses. You mentioned the descriptions of the super woke liberal court. Hearing you describe the litigation history and procedural posture of Razor, Melissa, also reminded me what a solidly

institutionalist court we have. Okay. Leah, sometimes you take my breath away. I burn for that comment. All right. So does anyone have any predictions about this? Like, are we going to see more fines and fees cases? Like there are a number of these kinds of campaigns going on throughout the various states, a lot of interest in re-enfranchisement of those with felony convictions. What's going to happen when this makes its way to the court again? So I have a sort of general, very uninformed prediction. And I just want to caveat first, my predictions are always wrong. I would say I'm famous. I'm famous in my own mind for always predicting things wrong.

So you could just maybe go the opposite from this. But the fines and fees, not just in the context of voting rights, but in the context of, you know, a lot of issues, due process, debtors, prisons, you know, the last term, the Supreme Court incorporated the excessive fines clause in in Tim's. And that was sort of a fine fines and fee-ish case. You know, this has been a pet thing for a lot of legal scholars for really, for quite a while. But as Melissa, as you point out, we're really seeing a lot of advocacy around this. So I wouldn't be surprised if, you know, certainly if these kinds of cases percolate their way up through

the appellate courts and then, you know, whether the Supreme Court decides to take them or not. I don't know. But I would expect to see a lot more sort of a lot of cases, fines and fees related cases making their way up. I think there's some interesting constitutional law issues in these cases that haven't been decided or haven't really been addressed in a long time. So it's an area that I'm very interested in. I don't, you know, once again, as you know, with so many friends on this court, you know, I don't have a lot of hope for the results. But as a sort of an interesting constitutional and legal matter, I think this is definitely an area to watch. And I should say it's not just fines and fees in the context of re-enfranchisement. Post-Ferguson, there was just a lot of interest in fines and fees Campos-Bouy, who've done really amazing work in California about rolling back some of these fines and fee schemes at the municipal level and state level.

Kate, if you're always wrong, can I ask you some quick hit questions? One, is Justice Beyer going to retire this term? No. Did you give me that answer because you knew your answer would be wrong? Yes, because that's not a prediction. So yes. Okay, that's it. Let's quickly return to the regular docket before we look ahead to the next term, which is, you know, we've repeatedly talked about textualism this past term, and the justices, you know, commitment've repeatedly talked about textualism this past term and the justices, you know, commitment to textualism and how oftentimes it can be a very ostentatious

commitment to textualism or a professed commitment to textualism, which, yes, they burn for textualism. And, you know, we saw how sometimes this methodology can be good for criminal defendants. And I think this is often the point that people who are making the argument that Neil Gorsuch is a friend of criminal defendants make. We saw this in Borden versus United States, in which the court interpreted the Armed Career Criminal Act to say that offenses with a mens rea of recklessness don't qualify as Armed Career Criminal Act predicates under the Elements Clause or Van Buren versus United States, in which the court interpreted the Computer Fraud and Abuse Act, you know, narrowly.

So as someone who uses parts of a computer or data within a computer for impermissible purposes isn't violating the act. And, you know, yes, that's true that textualism kind of inured to the benefit of criminal defendants in those cases, you know, Van Buren kind of most ostentatiously. But are we even sure that textualism is like doing the work there? I mean, that part, Van Buren was just the most ridiculous example of this. So I just got back from a trip to DC. And literally on that trip to DC, I got coffee with friends, just talking about how textualism could not be possibly doing the work in Van Buren. And this was, again, the case in which the court said using data to which you have access for an unauthorized use doesn't violate the Computer Fraud and Abuse Act.

And the court is like, oh, well, this would make people who abuse or lie on online dating profiles subject to criminal liability. And the court rests its conclusion on an interpretation of the word so and suggests that the consequences that would follow from the government's interpretation are just not relevant. You know, the court says to top it all off. Of course, the government's interpretation would like broadly expand the scope of criminal liability. And that's just extra icing on a cake already frosted. And it's like, you really think your 19 dictionary definitions of the word so are resolving this question? Like, you have got to be high on your own supply if like, that is what you write are writing here. It's very clear that like,

maybe it's more pragmatism than textualism at work here. It also seems very clear that your coffees are much more highbrow than other people's because when I get together with friends for coffee, we are not talking about the armed career criminals act. I was going to ask, were you on vacation? Yes. No, that's what I do on vacation. That's why we were talking about, you know, those statutory interpretation cases involving criminal law rather than like, you know, ERISA cases or something like that.

Kate and I are going to meet for coffee in New York and we're going to talk about the Kardashians. Meghan Markle. Meghan Markle. 100%. Kanye, Kim, all of that. I hadn't started watching FBoy Island yet. And so I wasn't able to talk about that in that moment.

That's all I'll say. I think if you had that coffee after beginning FBoy Island, it would have really changed the tenor of things because I don't know how you can have coffee and not talk about FBoy Island. Exactly. Then it would have been more FBoy, FBuy vibes. Why don't they spell it?

Did they spell it FBoy, B-O-Y, or B or b-o-i no they spell it b-o-y um they should spell it b-o-i yeah that's wrong yeah i i i worry that their attempt to cater to a younger audience right kind of hit the skid marks there and wasn't as well implemented as maybe they are seeking i mean i think the fact that a couple of 30 and 40 year old women are talking about FBoy Island suggests that they really did miss the mark. Perhaps. I'm enjoying it anyways. And that's all that matters, really.

I don't think they'll use this as a promo for the show, but. But HBO Max, if you're interested, give us a call or email. Happy to do a promo for FBoy Island on the show. Yeah. Back to textualism, though, because sometimes, get that transition, I was keeping you all in Limbro just like they do on FBoy Island. Okay, now really back to textualism. Well, sometimes textualism redounds to the benefit of criminal defendants. It doesn't always. We highlighted, for example, Terry v. United States involving the First Step Act or United States

v. Palomar Santiago, where it seemed like the court's method of interpreting statutes just completely walled off any consideration about the substantive effects of a decision or whether that decision kind of like made sense of the problem that Congress might have been trying to address. So just kind of an additional note I would add about the court's criminal law cases from last term. Want to look ahead briefly to next term? Is there anything good for criminal defendants in the next term? There are a lot of cases, but will any of them resolve this tension between rights and remedies in a way that would make Isha smile? So I do think the kind of dominance of bit of that already in the docket in this coming term.

And I think that's going to kind of be more consistently the case. So that's an interesting point. So your point is like when there were more of the liberals, they could actually seed the docket with a series of cases that would allow them to sort of prosecute a particular jurisprudential agenda, if you will. And it was hard to do it because, but with four, they could. And now that there is a conservative supermajority of six, and there are only three liberals, they really can't do that. And it's so much easier for the conservatives to do the same thing, albeit in a different direction. That's exactly right. And I

think that's a sort of underappreciated consequence, right? And again, they had to be careful about how they seated, as you put it, because they didn't have five, they only had four. But there were often cases that fell into the category of there are going to be nine zero cases if the Supreme Court will just bother to get involved. But you need someone to force them to get involved and to care and to feel like the stakes are high. And that was something the liberals could do, but they just kind of can't anymore. An unappreciated cost of minority status, of super minority status. So that's my take on the upcoming term. So, you know, one certainly high profile criminal law case that the court is hearing next term is Tsarnaev versus United States. And this is a case

about whether the death sentence imposed on Dzhokhar Tsarnaev complied with the constitutional guarantees. And this is also a case where I think something you had alluded to earlier about the Biden campaign's promises is front and center center because this is a case that the Biden administration has continued to prosecute in a Supreme Court that is not exactly receptive to death penalty litigants, despite running on a promise to commute federal death sentences. And Dzhokhar Sainiyev is one of the Boston Marathon bombers. So that's another reason why this case is particularly high profile. And there's been a lot of just media conversation about this case, but there was also a lot of

pretrial media conversation about this. And Kate, I know you had some concerns about that. Right. I mean, so I thought it was interesting that one of the questions is about whether or not the jurors should have been asked specifically about what kind of pre-trial media they had seen about the case. Many folks listening may not have been as around as I was when the Boston bombing happened. But if you were, you know, it's one of those cases where they had the trial in Boston. I mean, I don't know what person, I mean, you had to be sort of living, I mean, under a rock is not far enough to not have been just super infected by pretrial media. And of course, that's true in many cases. And, you know, with social media,

et cetera, it becomes even harder. So I'm not really sure how far that question would get. But one thing that really struck me in that case, and again, I don't know how big of a difference it would have made, but in my naive mind at the time, you know, there was a venue change motion. And it seemed to me that that was just a slam dunk motion. I just sort of imagined, you know, I spent some time in Boston. I just imagine like Boston is there's so much solidarity in Boston. And then you have this event and then, you know, you have a trial there. It just felt to me like if that case couldn't get a venue change, that there was no such thing as sort of venue change litigation. And that may just have been my naivete. And everyone knows there's no venue change litigation. But that really sort of put

the nail in the venue change coffin for me. So I'm interested in what the court or what anyone might think questioning jurors in Boston about pretrial media will accomplish or would have accomplished. So I'm curious about that. It doesn't strike me as an issue that's going to get the sentence overturned. But again, bad at predicting. Well, I mean, if it turns out that that is an issue get the sentence overturned, but again, bad at predicting. Well, I mean, if it turns out that that is an issue that the justices are particularly exercised about, that has huge ramifications for a number of high-profile trials. I'm just thinking about the Chauvin trial. Derek Chauvin was, of course, convicted of the murder of George Floyd earlier this year, And that was another

situation where there was a request for change of venue that was denied by the judge in a pretrial motion. And again, that's a very high-profile case that would obviously be implicated if the court were to take up that question and decide it in favor of the defendant. That's a high-profile case. I'm watching two super low profile ones. One is an Armed Career Criminal Act case involving statutory interpretation, Wooden versus United States, about what counts as distinct offenses

under the Armed Career Criminal Act, thus meriting longer sentences. And it involves a proper interpretation of amendments that were actually introduced by then Senator Biden. So this is a case where I hope the justices professed commitment to textualism ends up redounding to the benefit of criminal defendants, but we shall see.

And then the other lower-profile case that I am very worried about is Shin v. Ramirez, which involves the interaction between the Anti-Terrorism and Effective Death Penalty Act's limitations on evidentiary hearings and the Supreme Court's equitable exception announced in Martinez v. Ryan for how defendants can raise a claim of ineffective assistance of trial counsel. The issue is probably too complicated to explain right now on an episode that's running long, but that is a case that I am definitely watching and very nervous about. It's a case to explain on vacation. On FBoy Island, even.

This is what I would do on FBoy Island. Who wants to talk about Martinez versus Ryan and the evidentiary restrictions of the Anti-Terrorism and Effective Death Penalty Act? That will be my date. That pilot would have been snapped up. I would watch that show. I'm going to say, Leah, you're not going to go very far on the island. I would not watch that show. In this world, I'm not a contestant.

I am one of the people that the F-Boys and Nice Guys are having to go out on a date since like I can't be eliminated. So, you know, their success depends on their ability to cite Michael Williams versus Taylor to me and, you know, the cause standard. I'm just going to put it out there. Like, don't count those F boys out. Like, I think they are shameless. They are shameless. They may shock you. I think that's all we have time for. And maybe it's good that we put a pin in it because this has not been super uplifting as we reflect on the courts last year in criminal justice and we think about the upcoming year in the court's criminal justice docket. Probably not a ton of high points, but always a pleasure to discuss the court in criminal

law with two fantastic guests. So Kate, Isha, thank you for joining us. This has been really fantastic. As always, we are so indebted to Melody Rowell, our fantastic producer who makes us sound good and is going to have her work cut out for her today. And also Eddie Cooper, who does our music and Liam Bendixson, who is our fantastic summer intern. If you'd like to support the pod, please feel free to go to glow.fm forward slash strict scrutiny, where you can become a subscriber. If you don't want to be a subscriber, we're not judging you. We're kind of judging you,

but you still want to get your glow up on, you can go to www.strictscrutinypodcast.com, where all of our various merchandise collections are including a really exciting new collection for the end of term that will leave you burning for textualism as well. So check it out. Thanks so much for joining us.