Strict Scrutiny - Taking a Hatchet to Government Agencies

Episode Date: December 4, 2023

Leah, Melissa, and Kate recap the arguments in the hugely important administrative law case, SEC v. Jarkesy. Plus, they welcome Oona Hathaway and Sam Sankar-- two former clerks to the late Justice Sandra Day O'Connor-- to discuss her life and legacy.Read Kate's NYT op ed on Jarkesy: "This Quiet Blockbuster at the Supreme Court Could Affect All Americans"Read Oona Hathaway's NYT op ed on Justice O'Connor, "I Clerked for Justice O’Connor. She Was My Hero, but I Worry About Her Legacy."Read The 19th's reporting on how conservative groups are using the Supreme Court's affirmative action ruling to shut down the Abundant Birth Project: "Backlash to affirmative action hits pioneering maternal health program for Black women" 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 legs. 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. I'm Kate Shaw. And I'm Leah Littman. And we're sorry to start this episode on a somber note, but we wanted to acknowledge the passing of Justice Sandra Day O'Connor, the first woman to serve on the United States Supreme Court. And

toward the end of this episode, we will have a segment with some of her former clerks who will help us put her legacy and life in context. Before that, this episode is going to be heavy on the argument recaps. The Supreme Court heard an important administrative law case in which the Republican justices seem inclined to pull the trigger in the latest front of their war against the administrative state. So we want to spend some time going into that and explaining the potential fallout, which will take some time only because it's a pretty technical area of law. And then in our court culture segment, we will talk about the latest court of appeals to jump into the competition to be America's worst court of appeals, specifically on voting rights. But first up is recaps. And we're going

to spend most of the time in this episode recapping SEC versus Jarkacy. Excuse me. I mean, SEC versus Jarkacy. Jarkacy is a challenge to the Securities and Exchange Commission's ability to enforce federal securities law within the administrative agency. So within the SEC, there are administrative law judges, ALJs. And the SEC prosecutors can basically look at what a company is doing, determine that a company is violating securities law, and then bring their enforcement action before these ALJs, who are protected by civil service protection. So the agency head or the president can't simply fire them if they don't like how the ALJs are deciding cases. So the ALJ will get this enforcement action and will determine whether a company has in fact violated securities laws. And if the ALJ determines that the securities laws have been violated, the ALJ can impose statutory

penalties or fines on that company or offender. And to be clear, those ALJ decisions are not the final word on these penalties or fines. They are reviewable first by the full SEC and also in federal court. And this is not an SEC-only scheme. Congress has created this sort of scheme in many agencies over many years and for many good reasons, which Justice Kagan brought out with her typical flair in oral argument. So we're going to play a bunch of Justice Kagan today. Let's start off with one of those clips here. And when the Chief Justice made the point that it's been 50 years and things have changed and

that administrative agencies are more powerful, well, so too in those 100 years, I mean, our problems have only gotten more complicated and difficult. And it's usually Congress that decides how to solve those problems and whether administrative agencies with the kind of expertise that they have are the appropriate way to solve those problems, not this court, which decides, oh, well, we really only need common law suits to deal with securities regulation. So we said there were three independent constitutional challenges to the SEC system in this case. And to our surprise, I think, basically the only one the court was interested

in focusing on during this argument was whether the system violates the Seventh Amendment right to a jury trial, because of course, the agency's adjudication procedures, that is, decision by an ALJ, don't employ juries. And that's true about all agency adjudications, not just the ones that happen in the SEC. And like, look, hindsight's 20-20. I think one reason why I at least thought they weren't going to go this Seventh Amendment route is because there are cases that pretty squarely foreclose this challenge, whereas some of the other ones, in particular the removal, are unsettled if only because there wasn't like a prior case that definitively rejected that challenge. But of course, again, I'm an idiot. Stare decisis is for suckers. Those prior cases were not going to be an obstacle to this court. I mean, Leah, when a door is

affirmatively closed and another door is ajar, why wouldn't you just take a hatchet and hack down the closed door? Why wouldn't you do that? Naturally. Yep. Yep. Again, hindsight is 20-20. And so, you know, to understand why all of this hand-wringing about juries and the right to a jury trial under the Seventh Amendment is ridiculous and foreclosed by precedent, which is exactly why this court will go for it. We need to rewind a little. As we noted in our preview, this Seventh Amendment jury trial issue is inextricably linked with a separation of powers question. So put aside the Seventh Amendment, which is the guarantee of a jury trial, put that aside for a second. And civil cases. Right, yes, the Seventh Amendment is a civil jury trial guarantee. So there is a separate issue bracketing the Seventh Amendment, whether

Congress can assign certain claims to an agency at all. There's a question whether that scheme would be permissible under Article Three of the Constitution, which provides that the judicial power of the United States shall be vested in federal courts. And this is sometimes called the Article III or separation of powers question, whether these claims can be heard at all by an agency. So people have challenged agency systems of adjudication on this ground, saying they are unconstitutional because they take the judicial power of the United States outside of the federal courts and put it into agencies and therefore violate the separation of powers in Article III. And in those cases, the court has said, if a case involves a public right, Congress can assign those cases to an agency. And what are

cases involving public rights? As the argument made clear, and as the federal government's lawyer Brian Fletcher freely conceded in his first answer, the cases aren't a model of clarity, at least when you are dealing with cases between private parties. But whatever the outer bounds are, it is very clear that when a case involves the government, when the government is a party and is enforcing a federal law, i.e. this very case, that involves a public right that can be assigned to an agency. The proverbial closed door. Right, exactly, exactly. And not just like the logic that Leah just walked through, the cases, the cases make this clear. But, aha, said the Fifth Circuit and the challengers here, maybe, okay, let's assume Congress can assign these cases to an agency.

That still leaves a separate Seventh Amendment problem. Because if these cases were heard in federal court, then the Seventh Amendment might require a jury. And so the challengers go on, how can it possibly be that these claims would go to a jury in federal court, but a jury isn't required in an agency? Justice Barrett, who loves to talk about the Bill of Rights, pressed this idea kind of most at oral argument. And in terms of responses to this argument, I think there are, you know, at least three. There's a doctrinal answer, there's a historical answer, and there's a pragmatic answer. First, essentially since time immemorial, the Article III or separation of powers issue, as Leah was just describing it, has resolved the Seventh Amendment question. It has been understood that if the case

can be heard by an agency, of course, there is no jury trial required because agencies don't have juries. So what Kate is basically saying is that there are three closed doors here, but here, Mr. Jargsy is very eager to take a hatchet to all of them. And the government's argument is basically that the Seventh Amendment and Article 3 prohibit the government from taking all of tort laws. So from adjudicating cases by one private party against another where you slip on your neighbor's sidewalk and making an agency adjudicate those without a jury. So that's off the table very clearly. Those involve private rights and they are properly adjudicate those without a jury. So that's off the table very clearly. Those involve private rights, and they are properly adjudicated by a civil jury. But in circumstances where Congress writes some new law, maybe the Securities and Exchange Act, and creates new claims, and where it gives the government the ability to enforce the general public's interest in that law,

the cases can then go to an agency. Those claims implicate, quote unquote, public rights. And the Republican justices almost seem to be using the Seventh Amendment as like a stalking horse or a way to claw back on the Article III separation of powers cases that have allowed these systems of adjudication. They also seem to be quibbling with whether these claims, claims arising under federal securities law, are truly new claims or are basically just common law claims, like a replacement for fraud or repackaged fraud claims, which is silly. There are a lot of crucial differences between common law fraud and the

kind of fraud criminalized or made unlawful under the securities law. Federal securities law requires disclosures, among other things, which aren't required by common law fraud. And also in common law fraud actions, you have to prove things that you don't have to prove under federal securities law, like you relied on the false or fraudulent statements. I could go on. But yeah. And Justice Kagan did go on on these distinctions in the oral argument. And even though sort of late in the long argument, there were some efforts to basically suggest that this position, if accepted, wouldn't upend like all agency practice. Honestly, it very well could.

Right. The idea that juries are required for these kinds of claims could, in theory, jeopardize a ton of what the administrative state, as we know it, does. As Brian Fletcher, who's the deputy solicitor general who argued the case, noted, lots of different agencies hear cases within the ALJ system that involve federal claims. These agencies include, but are not limited to, the EPA, the CFTC, the FTC, OSHA, the list goes on. And the court is potentially calling all of those adjudications into question. So let's play Fletcher explaining that here. To bring all of those cases that are now proceeding administratively into the courts would be a huge imposition on the courts. And just in terms of the numbers, you know, the 1992 ACUS report that we cite counted more than 200 statutes at that point. And we very quickly got to two dozen agencies that have the authority to impose penalties and administrative proceedings now. So it really would

be, I don't want you to think that it's just about the SEC and it can just go to court because they really have wide repercussions. I know FTC and others, I'm aware. EPA, agriculture, I mean, it's really all over. FERC. FERCicus Pref. Complete non sequitur. But I am weirdly obsessed with Kavanaugh intoning Firk Amicus Pref from Firk at the end of that clip. And I would like someone

to set it to music. So I'm just going to put that out there into the universe. You know, we can't help what we like, I guess. The heart wants what the heart wants, Kate. Thank you, guys.

It seems like at least some of the justices wanted to cabin a ruling nuking the SEC to not cover all those other agencies, maybe because those other agencies are too important or whatever, in Justice Kagan's words from the CFPB case. We're just going to play that clip again. This is her like mocking the arguments challenging the CFPB. Yeah, it's just too important and whatever. I mean, the FDIC, the OCC, they also fail your test. All right. So basically, Mr. Jarkesey has a theory for dismantling the SEC, but it's not entirely prepared to go whole hog and get behind this and ask the court to dismantle every agency, like, for example, the Social Security Administration. And it's also not clear that the court wants to do that either, or at least five members of the court don't seem entirely exercised to do this. But it does seem like there is a majority here to limit the role that agencies can play in penalizing rich people who play fast

and loose with securities law. So I'm glad we could all get on board with that. So thank you, guys. Good work. It also seemed like some of the justices were suggesting that the social security context is distinguishable from the securities context because it's different if the government is revoking a benefit, as is often the case in social securities cases where licenses or social security benefits are in play, as opposed to doing something like imposing fines and penalties, which is what typically happens in these securities adjudications. Maybe in those cases, a jury would not be required. But when folks are cheating the markets, well, this is where you need a jury of 12 angry men for. Right. Yeah. And the justices, I'll just add to the list,

we're also at pains to single out the immigration system. No one seems eager to require juries there. But I think the broader point is- No, definitely do. Don't get a jury of your peers for that. Nope. Nope. Nope. Not interested. But I think the broader point is this. Wherever you might be able to draw lines between different kinds of adjudications, the Supreme Court has already said that systems like this, systems where agencies enforce federal laws to create new claims and duties, which is what this is, are totally fine. And that is true even where the federal law that Congress writes might have some similarity to a common law claim like fraud. Yeah, that doesn't change what the court has said.

And, you know, the most on point case which came up again and again in the oral argument is Atlas Roofing versus Occupational Safety and Health Administration or OSHA from 1977, which Fletcher correctly brought up a lot and which the justice seemed really annoyed by. Like, why do you keep referencing Atlas Roofing? And the answer is like, it's exactly on point. It's obviously from the 1970s. Every case from the 1970s. You know how we feel about that era. Yeah. Presumptively no longer good law, abandoned to the overruled.

The remnant of an abandoned doctrine. Exactly. That was definitely the subtext. Just because the case came up so much, let's briefly describe Atlas Roofing. So this is the 1977 case that upheld against a Seventh Amendment challenge OSHA's ability to bring cases seeking fines against companies for violations of the OSHA or Occupational Safety and Health Act. Those claims were similar to common law claims for negligence where, say, employees are injured because of stuff

the employer does, and yet that did not compel the court to fine the Seventh Amendment, require them to be heard by juries. But it was a different court case. It wasn't this court. So it just presumptively not really a precedent. They decided that case on a Tuesday and they heard argument and jarcasy on a Wednesday. So very different. This is why they were annoyed that Fletcher kept bringing up the case.

Exactly. Very irrelevant. So Atlas Roofing, don't know her. So we're gonna, for those of you who don't know her, we're going to read some excerpts from the opinion in Atlas Roofing, also for the kids who can't read too well on the Supreme Court. So, quote, this is from Atlas Roofing, Congress has often created new statutory obligations provided for civil penalties for their violation and committed exclusively to an administrative agency, the function of deciding whether a violation has in fact occurred, end quote. Next quote, Congress is not required by the Seventh Amendment to choke the already crowded federal courts with new types of litigation or prevent it from committing some new types of litigation to administrative agencies with special competence in the relevant field. This is the case even if the Seventh Amendment would have required a jury where the adjudication of those rights is assigned instead to a federal court of law instead of an administrative agency. End quote. Mic drop. Done. Why are we here? What is the sound of one door closing?

Atlas Roofing, we hardly knew ye. But for those of you who are still interested in learning about this now defunct precedent, Atlas Roofing was a unanimous case. Technically, Justice Blackmun did not participate in it, but other justices did. And among those in the majority in this unanimous case included noted rhinos and liberal squishes like William Rehnquist, Warren Burger, Potter Stewart, Pinko Kami, Byron White, better than everyone else who has ever walked the face of the earth since time immemorial. So obviously, Atlas roofing doesn't mean anything. And it's also possible that this court will say with a straight face that Atlas roofing has been abandoned by subsequent cases, which is code for we stopped talking about it. Therefore, it's abandoned. Like we ghosted Atlas Roofing, and now it's no longer a precedent. But that definitely seems to be the vibe they're going for. They're reaching for it. But Justice White cast doubts on it later a little bit,

and maybe that's enough. Yeah, there's a... But like those later cases did not involve the government. They all involved private party versus private party. And it's just my mind hurts with the sheer stupidity of this. Oh, my God. You just said what Brian Fletcher was thinking during the entire argument and couldn't say. And Leigh-Anne is so happy you said this for him. I'm your anger translator, Brian. I am your anger translator.

You know who else I think was also really upset here? Every legal writing and research teacher across America who's trying to teach 1Ls how to distinguish between cases. We live in a system of precedent. We live in a system of precedent. Story decides this. Facts matter. Like the difference between this case and that case is this one involved the government. This one involved private parties in the courts.

Like, nah. The difference is I wasn't there. It means Samuel A. Alito was not there. Therefore, this has been abandoned. Correct. So Justice Kagan was not having any of this. She was not going to let any of this we know better than anyone slide. And she had a very memorable line. She had quite a few, but one in particular about what the challengers were trying to do. And so let's play that clip here. What have been thought the hard cases, Northern Pipeline, Shore, Grand Financiera,

Stern, oil states, these are all private people on both sides of the V. And nonetheless, we've held that public rights might be involved because their disputes are embedded in federal statutory schemes. So those are the hard cases. But we've never suggested that in a case where Congress has given an agency the power to enforce something and the agency is bringing the charge, if you will, that that's just not – that's settled. Well, it's settled only to the extent no one's brought it up and forced this issue since Atlas Roofing. I agree.

In this context. Nobody has had the, you know, chutzpah, to quote my people, to bring it up since Atlas Roofing. I love this. It was great. I love this. This maybe should be said to music more than have a lesson. This is kind of a callback to her confirmation hearings when she talked about going to the Chinese restaurant on Christmas. Yeah, yeah, yeah.

Okay. Relatable content. So we have some other Justice Kagan clips that we wanted to play. They're long, but I think they're worth playing. One is a sampling of Justice Kagan literally bodying the lawyer for Mr. Jarcasy, who I have to say his most important contribution to this oral argument was correcting the record and making clear that the way to pronounce the challenger's name here is not Jar-kay-see, as we idiots have been doing, but instead as Jar-ka-see, to which I can only respond, Jon Stewart calls him Jar-kay-see, I'm going to call him Jar-kay-see.

That's his name now. That's his name now. Here is that clip. By the way, it's pronounced Jar-ka-see, not a number of other ways that it's been pronounced by many. So, you know, if he could accurately convey his client's name, he could not so much grapple with, here's a theory of the case that explains why I win, or right here is the way to distinguish all of the cases that suggest I should lose. And I just like to note that in this clip, Justice Kagan is able to do something that I actually think is like really difficult,

which is to mock this person who is so clearly not up to the task of doing this argument, right? Making a good argument, making his case. But she does it without sounding mean, right? Or like without getting so irritated that she comes off as mean. I just think that's super impressive. But it could not have been clearer that what they were saying is that the Seventh Amendment was no bar to Congress making a decision that certain kinds of claims were best adjudicated in administrative agencies. Yes, Your Honor, and I think we're pretty close, actually. So maybe the dispute is over what we do. If we're pretty close, because I think that just resolves the case. That's the issue. I mean, that's the issue. That's the result. Seventh Amendment is no bar.

So she can be tough and not mean, but you know who can't? You know who can't do that is our most Fantastico justice, being extra Fantastico. He was so rude. Neil Gorsuch, obviously, I'm talking about. So maybe let's play this clip of him with Fletcher. It actually isn't obvious. You actually had a number of people from whom you could have chosen. That's fair. It whom you could have chosen. That's fair. Fantastico was, I thought, a tell. That was the tell. If you were on Jeopardy, yeah. Yeah, the rudeness, I think, could obviously describe quite a few. But here we're talking

about Gorsuch, so let's play him and Fletcher. So Mr. Fletcher, with respect to your argument that Congress can move something from courts into agencies and the Seventh Amendment doesn't speak to that because it's not a suit. I think Noel Webster described a suit as any action or process for the recovery of a right or a claim before any tribunal, which would seem to be a problem. That's a pretty contemporaneous definition. And then Justice Brennan in Grand Financiera, I think, addressed your argument pretty squarely when he said Congress cannot eliminate a party's Seventh Amendment right to a jury trial merely by relabeling the cause of action and placing jurisdiction in administrative agency. Thoughts? Yeah, so I guess I think that's still inconsistent with

what the Court has said in Gran Financiera. I just quoted from Gran Financiera. I'm sorry, I misspoke. I don't think that's what the Court held in Gran Financiera. It's inconsistent with what the Court said. You're saying I misread it, Mr. Fletcher? No, Justice Gorsuch, I'm saying. You said that that's a purely taxonomic change and that that's not enough to render it no longer a suit for purposes of the Seventh Amendment. Yes. In context, Grand Financiera is talking about a proceeding that was in a bankruptcy court in the Article III setting. I think the court's subsequent cases, including oil states, have said if you're permissibly in an Article III tribunal, then the Seventh Amendment doesn't have independent work to do. I apologize for misidentifying the case I was relying on. All right.

And there's one more Gorsuch-Fledger exchange that I just, you sort of see the endlessly patient and calm Brian Fledger get just the tiniest bit exercised. And also, I think, genuinely get the better of Gorsuch. Little tetchy. I mean, yeah, he still needs Leah to anchor translate, but you could see a bit of it emerge. He's getting there. Let's wait till June. We got a long way to go. Okay, let's play that one. What if the government tomorrow decided, well, we don't like those jury trial

that come with that. We're going to effectively overrule toll by moving those to administrative proceedings. Then the Seventh Amendment would disappear on your account, wouldn't it? Yes, but that's Atlas, too. And the Court recognized and looked at all of the history and the importance of the Seventh Amendment but said it's always been tied to the nature of the forum. There have always been circumstances where important rights get adjudicated without a jury, an admiralty, or equity proceedings.

I understand that. And this is just that. The key part of the answer is yes, that that would overrule the preexisting Seventh Amendment right this court recognized in Tull. I disagree that it would overrule that right respectfully, Justice Gorsuch. It would evaporate it? No. It would dissipate it? What verb would you prefer?

The Seventh Amendment right that the court recognized in Tull is the one in the Seventh Amendment, which is a right in suits at common law. If it's an administrative proceeding, it's not a suit at common law. Okay. Pace yourself, Brian. Pace yourself. I know. I feel like a little concerned or sad. Like we should offer, I don't know, like does he need like a signal chat or like some sort of like post-argument happy hour in which he gets to say like what he actually wants to say?

The Seventh Amendment the court recognized is not the one in your imagination. It's the one in the Seventh Amendment. That I thought was pretty epic. I think we should just send him one of the strict scrutiny journals in our merch line and just like turn it into Brian Fletcher's burn book. Like Neil Gorsuch is a nasty pants. Just one moment.

Let's pour one out for our homie, Brian Fletcher. I mean, this had to be, like he gave a really great argument. He did. Yes, he was terrific. Like we are not suggesting, he was great, right? Like the content was exceptional.

He had everything to say. It was clear. It was responsive. You know, it was like eloquent. And then this guy walked in off the street and is gonna get a win. Like literally walked in off the street and is going to get a win. Like literally walked in off the street and said, it's Jarkese. Even though he doesn't have a theory, right? And

couldn't maintain an argument. He like walked in, got to the mic and said, the man's name is Jarkese. Dropped the mic and now he's going to post a W. Like that's what happened. And Brian Fletcher is like literally spitting out full expository paragraphs, right, that read like a treatise on the Seventh Amendment. And it's just not it. So, you know, I guess that that's what flies these days. We're being super cynical. Maybe he will win. We don't know. We don't want to put that out there. We don't want to manifest that. True. Yeah, sure. But we can count. Yeah. Sorry. One more long clip, which is of our other favorite anchor justice, Justice Jackson, using her final moments to, as she just does so well, to press the key points and to get

her colleagues to try and understand what Atlas Roofing said. We should also note when we call her an anchor justice, we mean like the anchor person in a relay race who's like the last person who's going to like literally bring it home. That's what we mean. So we don't want any confusion. Don't slide into our DMs. Like we know what we're talking about. That's fine. But I couldn't find Article 3 in Atlas Roofing.

It's not talking about that aspect of the analysis. I saw it talking about when Congress at the beginning creates a new statutory duty, and in this case, it's the duty not to, what, employ any device scheme or artifice to defraud in the context of securities transactions. This is a new statute. We've got this new duty. Congress says, there it is, and we're giving it to the government to enforce this for the benefit of the public. All right? That's the beginning. In that situation, does the Seventh Amendment kick in? I think Atlas Roofing says no,

because we're not talking about a situation in which Congress has alternatively said, any common law fraud claim out there in the world concerning securities has to now be brought in this administrative action. If you're relying on the common law and you're bringing this kind of claim, you don't get a jury trial anymore. You have to come before the SEC. That's a Seventh Amendment problem because we're still—do you understand what I'm saying? So it's a suited common law because you had the common law claim that is now implicating the Seventh Amendment right. But it's not a suited common law when Congress creates a new duty and gives it to the SEC or some agency to enforce.

Through administrative proceedings. Through administrative proceedings. Then we're landing in exactly the same place, yes. I think I may just be baking in some additional hoops that Congress has to jump through, but I'm not disagreeing with your bottom line. All right. And I think the problem then is that if I'm right about this, then I think it solves a lot of the concerns that my colleagues have about Congress shifting into, you know, certain things into administrative proceedings. Because really, the Seventh Amendment is only implicated if they're shifting into administrative proceedings, things that were suits at common law,

meaning claims in common law. They're stealing from the private person who is protected by the Constitution that right. Right? Yes. Thank you. Justice Jackson ended this by thanking Brian Fletcher, but she really could have just said, you're welcome, because she really brought it all home and tied it all up. She and Brian Fletcher were a great tag team on this. Yes. Yes. No. I mean, the combination of Brian Fletcher, Justice Jackson, and Justice Kagan, that's a winning team, right? Like that team can put together an argument and a theory of the case, right? And do you know what that team can't put together? A W? A majority. Like it can't be a majority, regrettably. Correct. You know, one final clip that to me brings home in some ways just how outlandish and ridiculous

this entire escapade was. It seemed like some justices decided during this argument that they like penumbras and emanations after all. So here we go. three question is grounded in the separation of powers. We're asking, are we concerned about Congress taking away the judiciary's power? And that's not, that is a concern when you have disputes between private parties. What about individual liberty? The purpose of the separation of powers is to protect individual liberty. And your individual liberty, it would seem, is even more, or at least equally affected when the government is coming after you than another private party. What Justice Kavanaugh is articulating here is a completely free-floating, untethered, unmoored idea of what liberty is, which he is just casting as the separation of powers. So it's not just liberty or due process, but still allows him to say certain things are just too unfair for him. And it's like, come on. Penumbrous and liberties for me, but not thee.

Well, penumbrous and liberties for political branches, just not for women. Not people. Like Congress can get birth control, but you can't. Right. And again, just to make the analogy clear, the idea that they are just imposing some free floating notion of what is liberty and what is fair, that is the same complaint. They levied at the concept of unenumerated rights, rights that aren't specifically mentioned in the Constitution's text and substantive due process. And Justice Gorsuch was really into this liberty idea, suggesting that it's just unfair. You couldn't get a jury if Congress put these claims in an agency. But the

Seventh Amendment does not enact Mr. Neil Gorsuch's theories or conceptions of fairness. Congress could have assigned these claims to state courts where the Seventh Amendment doesn't apply because it's not incorporated against the states. And the text of the Seventh Amendment means there will be times when you might think it's unfair, Neil, to not get a jury, but a jury still wouldn't be required. Like suits for an injunction or an admiralty or whatever, where it just isn't required. It's not some free-floating conception of fairness. You just get to apply. Well, so that's fine. Okay, that's a text of the Seventh Amendment, but what about the text of the Separation of Powers Clause? Boom, lawyer! I do appreciate you invoking Justice Holmes, Leah, just casually, like casual paraphrase.

Again, I just feel like there's a special kind of torture for people, particularly women, who have spent their lives working so hard and trying to be good at law and be able to be like recognized up along with the boys only just to have the stupidity thrown out right and left. So pausing to take stock for a moment, I guess how scared should we be? What to make of the fact that the court asked literally zero questions about one of the issues in the case, one of the bases on which the Fifth Circuit had concluded that this was unconstitutional, which was the non-delegation doctrine. And Brett Kavanaugh asked one, but this kind of like dutiful one question about the removal issue, which was a separate basis on which the Fifth Circuit had concluded this was all unconstitutional. So is it naive of me to believe they can't possibly be planning to blow up an agency on grounds that they couldn't even bestir themselves to ask questions about. That does mean we're safe

on those arguments, or is that naive of me and they could just decide to write something incredibly destructive on both of those issues as well? Here's one option. I mean, maybe they don't say anything about the non-delegation doctrine or removal, but it doesn't rebuke the Fifth Circuit, which leaves them free to continue on that BS, and they will continue to do that. It's pretty bad. Yeah, they can do a lot of damage. Yeah, I mean, it really was.

Clearly, they're interested in the Seventh Amendment, and maybe there is enough, despite like that note-off that we struck a minute ago, Melissa, that it's clear enough this is going to go down on Seventh Amendment grounds, that they could say that judicial restraint counsels them, not saying anything unnecessary about these open constitutional questions. And so, yeah, I guess that's good because there's nothing that constructive I could imagine this court saying. And yet, the point about the Fifth Circuit is really right. They have a lot of cases that if they decide, well, we haven't been in any way rebuked on this, on either of these theories, we can continue to apply them with all kinds of insane consequences

for agency practice. So yeah, I guess that's maybe that that is where to land on those two. But what about on the Seventh Amendment? Is there any real hope? Or this is just a question of how big and how bad the decision is. But clearly, there's going to be some finding there's a Seventh Amendment violation. I mean, and on the Seventh Amendment thing in particular, I mean, look, of course, there's a chance that they get cold feet and don't actually pull the trigger on the Seventh Amendment issue.

But I think it's more likely that they do based on the argument. I think they are going to be lawless and overrule Atlas Roofing without saying they are doing so. But I don't know how far that ruling will go. The court could give different reasons why this particular in-house enforcement adjudication system is unconstitutional. Some of those reasons might apply to a few agencies, some might apply to many agencies, and it's just hard to know, particularly if they're going to say, well, this securities law claim is similar enough to common law fraud to trigger the Seventh Amendment when there are several differences between the two claims. And again, you're basically always going to be able to identify some common law claim

that's kind of similar to a federal statutory claim. So that's kind of what I think. All right. Shall we move on to the next set of cases? Leah, contain your words. She's impatient. Yeah, I know. She's so excited.

And it just sometimes she's literally vibrating. Amazing. So the next two cases are Brown versus United States and Jackson versus United States, which were consolidated for oral argument. And they involve the Armed Career Criminal Act, which is a statute that Leah just loves, loves it. Well, I hate it, but I am like, you know, fixated on it. Yeah, you're fixated on it. Yes, it provides lots of grist for your mill. And in particular, in this case, the concern regarding ACCA is about mandatory minimum sentences under ACCA. So ACCA prohibits certain individuals from possessing firearms, and it imposes a mandatory

minimum on those individuals who have three or more prior convictions for violent felonies or for controlled substances. The question in these cases is how do you determine whether something is a controlled substance offense? Or really, at what point do you determine whether a prior a controlled substance offense? Or really, at what point do you determine whether a prior state conviction counts as a controlled substance offense for purposes of ACA? So as we briefly covered last week, federal law classifies drugs as controlled substances by labeling them under drug schedules, but the Attorney General regularly changes the

drug schedules. So the question in this case is, do you look to see whether a state conviction involved a drug that was classified as a controlled substance, one, at the time of the prior state conviction, or two, at the time of the federal firearm conviction, or three, at the time not of the conviction, but of the sentencing for the federal firearm offense? The government is arguing for a time of prior state offense rule. The two defendants, Brown and Jackson, whose attorneys argued separately in the case, are arguing respectively for either a time of federal sentencing or time of federal offense rule. This argument was a Monday after Thanksgiving, and it felt like some people, not naming names, were tryptophoning it in with a little turkey hangover. Three people showed up for these arguments.

As to the others, it felt like they had not necessarily done the reading or thought about this case much at all. Some of them threw out super basic questions like, well, wouldn't there be administrability problems with consulting prior drug schedules? Or, I don't know, how hard can it be to look up the prior drug schedules online? Like just pretty basic moot court style questions along the lines of the other side said this, can you respond? You know, the Chief Justice was the one who said, I don't know, can't you just have a probation officer look up a prior drug schedule? It doesn't seem that hard to me.

Justice Sotomayor came back with a rejoinder later in the argument that we wanted to play. And this really sort of, again, goes to a running theme that we've seen from her multiple times this term. So let's play that clip. Assuming I accept that there's a burden, I know you're saying there's not, and the chief suggested there might not be. I accept it because I think every prosecution, probation officer, and defense counsel in these various amicus tell us there's a problem. Who bears the burden? The point of all of this is that here we are with a criminal case, and it falls upon a former district judge, or rather one of the two former district judges

on the bench, to explain to everyone else how these things actually work in practice. Yeah, and the other former district judge had to do the same thing because other justices asked questions that betrayed an utter lack of knowledge about how federal sentencing works. So at one point, Justice Barrett mused, but if we apply the rules in place at sentencing, that would mean people's sentences vary depending on when they're sentenced. And it's like, whoa, right. At which point Justice Jackson jumps in and says, isn't that how all of the sentencing guidelines work? You apply the guidelines in place at the time of sentencing. And the lawyer was like, yeah,

this is awkward, but yeah, that is how it works. So, you know, that was a summary. So as we mentioned, three justices showed up. We already played the clip of Justice Sotomayor. Another person who did the reading, no surprise, was the former dean of Harvard Law School, Justice Kagan, who had some not too kind words for the federal government's take on this case, which called to mind something I had flagged in the preview, namely that ACCA explicitly incorporates the drug schedules rather than listing particular controlled substances, thereby permitting those schedules to change over time.

So let's play that clip here. So your whole argument rests on treating differently a list of five substances or any other attribute of ACCA, treating it differently from a controlled substance as defined in Section 102. And that seems a little bit mysterious to me. I mean, if you ask why it is that Congress put in this language, a controlled substance as defined in Section 102, it's, well, number one, there are lots of controlled substances, and you don't want to have to list all however many there are. And number two, we expect them to change. So what's going to be a controlled substance next year is not necessarily the same as this year. And so on both of those theories of why Congress used this language, it seems perplexing as to why you would have a different rule than you would if Congress had just listed the substances.

And in terms of who else showed up for the argument, obviously, former speech and debate national forensic champion and also and significantly former public defender. And member of the Sentencing Commission. Yes, correct. Who knows a few things about the guidelines. She showed up ready for this gunfight, pressing the federal government on why it would make sense to treat someone as having a serious drug offense when the federal government made clear it no longer regarded that offense as serious. All right. So then my question, I guess, is why would Congress want to incapacitate defendants who have committed crimes that federal law no longer regards as serious.

I mean, I thought the point of this was we're doing ACCA because we think, Congress says, that certain people need to be taken off the streets for long periods of time. And in order to identify those people, we look at their histories and determine whether they have committed certain kinds of crimes. If we today, as we undertake sentencing, have an understanding that these certain kinds of prior crimes are no longer considered serious because the schedules have changed, I guess I'm trying to understand why the government's position is that they should still be ACCA predicates. Right. The reason, Justice Jackson, is because we think in terms of assessing the seriousness of the prior offense, it makes sense to look at the legal landscape at the time the offense

occurred. Why? We're doing the sentencing today, and we're trying to determine whether this person today needs to be put in jail for 15 more years. So why does the seriousness or the label or the perception of the past as to what he did mattered? Why wouldn't the criteria for determining that be what we think about his prior crimes today? As to how this case will come out, because it wasn't clear the justices showed up to work that day, it was a little hard to get a read on where they stood. I at one point was like, can someone do a wellness check on Neil Gorsuch? Like, where is he? Like, what is happening? It really was odd. Yeah.

Someone remind him that it's a republic if you can keep it. It did seem to me like Justice Gorsuch, Justice Sotomayor, and Justice Jackson were not fans of the federal government's theory. If I had to guess, Justice Kagan wasn't either, although she did press the defendant on why ACCA would incorporate drug schedules for state crimes, but not federal ones, although the defendants had answers to this. But it's unclear whether there's a fifth vote against the federal government. It didn't seem like Alito, Kavanaugh, Thomas, or the chief were leaning toward the defendant. But again, not super clear. They did the reading and Justice Barrett also hard to like get a read on. So I just don't know.

Super sleepy. It was giving Linda Evangelista, I don't get out of bed for less than 10,000 a day, to which Harlan Crowe said, we can handle that. Thank you. Exactly. So we're going to go relatively short on two arguments that the court heard last week, McElrath versus Georgia, which was the double jeopardy case, and Wilkinson versus Garland, which concerned whether federal courts can review mixed questions of law and fact from immigration proceedings. The court kept these arguments on the shorter side. So that was a merciful blessing because they've been going long on lots of things.

But in McElrath, it did feel a little bit like the chief was basically bullying the justices out of using their seriatim time in order to keep the trains running on schedule. So let me play this clip so you can hear him enforcing things. Thank you, counsel. Rebuttal, Mr. Simpson? Oh, I'm sorry. I'm sorry. We've skipped the... We're ready to jump in. Excuse me. Anything further? I do have some further. Sorry. Wow.

Kavanaugh was like, please, sir, may I? I liked that. He couldn't read the room. No, he could not. Everyone shut up. And Kavanaugh was like, I have a question. It's the guy in the last minute of class when the professor is like, does anyone have any questions? And the answer should be, no, we do not.

And Brett Kavanaugh's like, actually, I want to know about the theory of judicial review and neutral principles. So true. Anyway, it was a little hard to get a read on where the court was leaning, though it did seem like in the offing might be narrow wins for the petitioners in both cases. So yeah. I think Georgia loses here. But I think there are just open questions about how much the defendants actually benefit, depending on what the Georgia courts do, if it goes back down, if the acquittal gets wiped

out. Anyway, there's I think there's open questions about what happens next. But I do think Georgia loses. Yeah. So the substantive issue in McElrath is whether the double jeopardy clause allows a state to retry a defendant after a jury acquitted the defendant on some charges and convicted on others. And the state courts conclude those verdicts of acquittal and conviction were repugnant because they're irreconcilable.

The three Democratic nominees and Gorsuch seem pretty clearly to favor the petitioner defendant. Here is Justice Jackson. But the second one I would say is it's McElrath's burden to identify why a state can't do this. It is the strong presumption that a state does have authority over its own criminal laws and procedures. And unless there's something in the kind of fundamental right to a jury trial or something like this. And here is Justice Gorsuch. Why does that make a difference? An acquittal is an acquittal is an acquittal. Oh, I think it makes sense. Since time immemorial.

As we suggested in the preview, the court's existing case law prevents states from retrying defendants who were acquitted on some charges and convicted on others can't characterize inconsistent verdicts as irreconcilable or repugnant verdicts just to get around those decisions. So, again, a possible win for the petitioners, but a very narrow one. And just to clarify, I think, Kay another decision about whether to wipe away the verdicts or let them stand. And depending what they do, that could tee up possible acquittal. Right. Double-definite questions, yeah. Right.

Well, it just seemed as though Kavanaugh was sort of suggesting, well, it's not necessarily an ultimate boon to the defendant for a win to happen here because of proceedings that will happen in Georgia after remand, if in fact, Georgia loses at least in the Supreme Court. Right, exactly. So in future cases, they could allow the verdicts to stand. Yeah. So last case we will talk briefly about in Wilkinson versus Garland. That's the case in which the court is going to decide whether a federal court can review mixed questions of law and fact that arise in immigration proceedings. The government says courts can review only questions of law.

The petitioner says no, courts can also review mixed questions of fact and law. The relevant statutes preclude review of factual determinations related to certain immigration decisions. So if that also precludes review of these mixed questions, well, no federal court review at all. So it matters a lot. And it's often hard to figure out how to characterize certain kinds of findings. And so that's what a lot of the argument was about. So for a couple of reasons, it was kind of hard to get a read on where the justices were leaning. But it seems like there will probably be a narrow ruling for the petitioner that says

something like truly mixed questions will be reviewable. But it will be a narrow ruling, I think, because some of the justices could say that a petitioner could not challenge any factual determinations, i.e. an immigration applicant would have to go to court and say, the only issue I'm making you review is whether there's an undue hardship on these undisputed facts that I cannot challenge. And here's a clip of Justice Barrett articulating that idea. But it seems to me, and I've looked some of these cases in the Sixth Circuit sides with you, but when it reviews these cases, it says that a lot of these claims about, well, you just didn't understand the strength of the emotional bond,

or you didn't accurately predict what life would be like for my child if I were deported or removed or my spouse. What the court says is those kinds of things are factual. And I guess that's where I'm stuck because even if I accept your argument as flowing from Guerrero-Lasprilla, it's hard for me to see looking at these cases very many that aren't essentially factual challenges. And here's another clip of her again, reinforcing that point. So would you accept then that there would probably be only a very narrow slice of cases that a ruling in your favor would make judicially revealable and including potentially even Wilkinson's own? And just to kind of spell out in a little bit

greater detail how this could be a narrow ruling, the federal government suggested if the court really made all factual determinations unreviewable, they would be happy with that ruling, depending on how the court might define factual determinations. And that could cover quite a lot. So here is the government's lawyer explaining the kind of factual determinations that might be unreviewable. But yes, I mean, if the court wants to say just apply that law, that law facts divide and put all of the things like predictions, like comparisons on the fact side, we'd be very happy. We do think that the court needs to give that kind of guidance.

So I guess we'll just wait and see how that turns out. But it does seem like the petitioner will prevail. And the petitioner was represented by Jamie Santos, making her SCOTUS debut. And she did a terrific job. So congratulations to Jamie. I don't want to leave Wilkinson without noting this one very interesting and maybe even revealing intervention from our favorite fanboy, Justice Samuel A. Alito. So let me just play this clip. But if you ask an ordinary person, you set out a certain set of facts. So let's say I'm complaining about my workplace. It's cold. It's set at 63 degrees. There isn't any coffee machine. The boss is unfriendly. All my co-workers are obnoxious. And you say, am I experiencing? No, I'm not.

Any resemblance to any living character is purely accidental. Is that unusual? Am I suffering unusual or exceptional hardship? What are you thinking of, Sam? Where did that hypo come from? Hmm. The boss is unfriendly. All my coworkers are obnoxious.

Right. It's like everyone knows the disclaimer on Law & Order masks the fact that these are ripped from the headlines. So, you know, my guess is that might be true here as well. So this week, the court will be hearing some big cases. It will be hearing the tax challenge in Moore versus United States, which seeks to prevent the federal government from being able to tax unrealized income, which could bar Congress from imposing a wealth tax, you know, down the road.

The court will also hear the challenge to the Purdue Pharma bankruptcy settlement in Harrington v. Purdue Pharma that released the individual members of the Sackler family from liability. We will discuss these cases in depth next episode when we recap the arguments. All right, so let's transition to court culture. First up, we wanted to come back to something that we covered in an earlier episode, which is the Zyrowski case. So the Texas Supreme Court heard oral argument in that case. And again, Zyrowski is seeking to clarify the medical exemptions to Texas's restrictions on abortion.

So they had oral argument this week, and during the argument, the lawyer for the Texas Attorney General conceded that not all of the plaintiffs could get abortions under the law, including individuals who would give birth to babies who were going to die within minutes. And the Texas AG also suggested that women should sue their doctors after they were denied care, which wouldn't be especially helpful. And it's also, I think, high level gaslighting to suggest that what happened to these women is the fault of their physicians and not attributable to the state's efforts to limit the accessibility of abortion as a medical procedure. But again, yeah, whatever. Yeah. And I just wanted to flag that like this legal argument really tracks something that Jessica Valenti, who runs the abortion everyday sub stack has been noting, which is increasing efforts to distance cases where abortions are denied under tragic circumstances from the abortion laws to potentially suggest, again, that like, it's not the fault of

the laws or the anti abortion movement that this is happening, but some other people or some other thing. Yeah. And you saw those moves both on the part of the Texas attorney and also from the bench in a number of questions that said things like, well, that sounds like medical malpractice. Why didn't she just sue her doctor. And, you know, just to take a step back and talk broadly about the arguments, Molly Dwayne, who we had on the show last month, and who tried the case and argued the case before the Texas Supreme Court on behalf of Amanda Zyrowski and the other plaintiffs, who are some patients, some doctors, some who are both, was totally incredible in the argument. And the attorney representing the state of Texas, this is also something that Jessica Valenti has flagged, was like, embarrassingly out of touch with some of the basic facts of the case. She wasn't even familiar with some of the medical

conditions that presented with some of these pregnancies, which is pretty shocking. And then just kind of on the merits of the argument, there were just these questions, not only the why didn't the women sue their doctors, but things like, can't the medical board just clarify this? Or why didn't you bring a vagueness challenge or a facial challenge? And it been instructed well this is too broad you should bring an as applied challenge so they have brought a narrow as applied challenge and of course the answer they get is that well you should have brought something broader and facial and the actual answer is these courts want no relief ever to flow from any channel or any avenue but instead of forthrightly saying that they find a way to try to blame these plaintiffs and their attorneys for somehow doing something wrong.

And it was infuriating. And also to the point of trying to drive a wedge between doctors and patients. The answer Molly kept giving was, these doctors are not the wrongdoers in the eyes of my clients. The doctors actually understood their hands to be tied. And so, no, my clients should not be forced to sue the people who are also being burdened by these laws. The doctors don't want to be refused the ability to perform medically necessary abortion care on their patients. The doctors and the patients are on the same side. The state is the problem. And the attorneys and I think some of the judges seemed to completely want to reconfigure that or at least try to kind of rewrite that story. And the whole thing was just maddening. But I thought Molly did a totally incredible job. And I honestly don't know how it comes down. The arguments are so good. And Molly did something that she kind of previewed when she was on the show, which was to basically make clear that the women who suffered because of this state law were sitting in the courtroom.

And the justices, she told the justices that she reminded them that they were there. And she kind of wanted the justices to sort of have to say to the faces of these women, like, the state didn't cause this. And I thought it was a powerful moment. I don't know how it's going to come out. But I don't think this is going to be an easy case for the justices to just write an opinion in basically saying that, ah, the state law is clear. Like, nothing in the argument, I thought, was going to be conducive to them writing an opinion with ease that said something like that. Yeah. And to the point, you know, the idea that the state medical board could clarify this, you know, of course the state could clarify this. The point is they haven't, right? Even though they

have been asked to do so. And that is why the plaintiffs are in court now. So it was just like a frustrating argument in several respects. You know, there were also false equivalencies coming from the bench, like the justice is suggesting like, well, aren't all laws unclear. You know, there were also false equivalencies coming from the bench, like the justice is suggesting, like, well, aren't all laws unclear? You know, police officers have to do their jobs in the face of unclear law. It's like, well, when police officers have qualified immunity if they're sued, and also the risk of prosecution there is quite low. And also, there's no testimony that they aren't doing their jobs now because of a lack of clarity. So like, there are lots of differences here, but it was just very frustrating to hear. So also, as we previewed, the competition for America's worst court of appeals is continuing to heat up as the year heads to a close.

Last week, we covered the 8th Circuit's efforts to one up the 5th Circuit by coming up with a new extreme textualism approach to kneecapping the Voting Rights Act. This week, there's a new contender straight out of Dixie. The 11th Circuit is taking a run at the title, ladies and gentlemen. The 11th Circuit issued a decision on the Voting Rights Act, concluding that Georgia's system for selecting members of the Public Service Commission based on statewide elections complied with the Voting Rights Act. The reasoning in the decision is a little messy and hard to follow, but it suggests that the plaintiff's challenge was suspect or bad because the challenge was aimed at a statewide election. Even though at the same time the court said statewide practices can be challenged under the Voting Rights Act, I guess just not this one, the opinion was by one

Trump appointee, Judge Branch, joined by another Trump appointee, Judge Grant, and a district judge sitting by designation who was nominated by H.W. Bush. The 11th Circuit's decision is concerning because it suggests that any novel or unique claims under the Voting Rights Act would be treated with this kind of judicial suspicion. But of course, states sometimes use novel, unique, different methods of voter discrimination giving rise to novel or unique claims. Well, it's not just that the states continually innovate in trying to limit the franchise. It's also that when you close down various provisions of the Voting Rights Act, that could be avenues for vindicating voting rights. Litigants have to dream up new and

novel ways to harness the statute. So I mean, like, it's kind of a displacement effect. Like, of course, they're going to innovate in the same way that the state is innovating what it means to discriminate. So again, absolute worst, but here we are. Yeah, I mean, the bar is like dropping every week. So who knows what the absolute worst is going to look like a couple of weeks from now. Okay. So this is something that Melissa, you kind of predicted a couple of months ago that we were going to see materialize. And now we have, which is that Supreme Court's- I believed I called it the love child of Dobbs and SFAA versus Harvard. That is basically what we are now seeing,

which is the court's Students for Fair Admissions decision being used to challenge programs designed to combat high maternal mortality and morbidity among Black women. The 19th, which is the news website, reported that conservative groups have now filed a lawsuit to shut down the Abundant Birth Project, which is a city program designed to support pregnant black women by providing them with stipends to support medical care, housing assistance, and food security. And this, in the eyes of these SFFA slash Dobbs enthusiast maximalists, is somehow a violation of the colorblindness principle in the Constitution

and apparently federal law and everywhere else. And thus, this program cannot withstand legal scrutiny. So Melissa, you call this? Well, I mean, again, the tea leaves were not hard to read here. And this comes on the heels of an 11th Circuit decision regarding VC funding for black women. So you know, there was a VC fund that provided grants, like not very big grants, like relatively modest grants to women entrepreneurs, black women entrepreneurs. And again, the whole idea here was that black women receive less than 1% of venture capital funding. And there was a lawsuit filed by, you know, the Ed Blum trolls basically saying that this was no longer constitutional after SFAA versus Harvard. And the 11th Circuit was like, yeah, that sounds right. Because again, in the running to be America's worst circuit court,

and why just do it on Voting Rights Act, you can do it on a lot of things. Justice Sandra Day O'Connor, the first woman to be appointed to the Supreme Court, passed away last week at the age of 93. And so we wanted to take a little bit of time to talk about the justice and her legacy with two people who had the good fortune to work with her as law clerks. We are grateful to be joined for this conversation by Sam Sankar, a strict scrutiny super guest, and Ona Hathaway, who is making her strict scrutiny debut. Thank you so much for joining us today. Thanks for having us. So Sam is Earth Justice Senior Vice President for Programs and a former law clerk to Justice

O'Connor during the 2003 term. And Ona Hathaway is a professor of law and political science at Yale. She served as a law clerk to Justice O'Connor during the 1998 term. So we want to talk about the justice and her jurisprudence and her legacy, but maybe we could start with a little bit of a conversation about the experience of working for Justice O'Connor. So maybe, Ona, do you want to kick us off and just tell us a little bit about the experience of serving as her law clerk? Yeah, she was extremely warm, though formal. I know that sounds like a contradiction, but it's true. So I mean, she would do little things like, you know, she would bring in lunch every now and again, which was really sweet. And I actually house sat for her before I before I clerked for her. So

got to know her well, even before I clerked for her. So that was, that was really interesting. She's just she was a real human being, a real person. And she was very down to earth. She didn't take herself too seriously, despite the fact that she was, you know, this kind of revered historical figure, you know, she, she kind of came across as sort of a very warm woman who just happened to be in this amazing historical role. Sam, you want to weigh in on the just sort of top lines about the experience of working for her? Yeah, I mean, she was an amazing character.

If you spent one day with her, you could spend five days telling stories about that day, because there was just always something. You'd walk away from a conversation and you'd say, did that really happen? Did she just really go to dinner at the Italian embassy and come back trying to set me up with somebody who she met at that dinner? Which literally happened. And my co-clerks called her out for it. We're sitting there at lunch and she said, oh, I met this most amazing person.

And one of my co-clerks says, was she Indian? And the justice says, what does that have to do with anything? Like that was all of my memories about her are less about the law than, and more about this incredibly powerful human being who wanted to influence not just actually, I wouldn't say she wanted to influence the law in the country as much as she wanted to influence making sure that you had grandkids. Yes, which she referred to as her as her grand clerks. She took that very seriously. And she totally was very much into like, making

sure that we were all you know, in happy relationships. totally was very much into like, making sure that we were all, you know, in happy relationships. That was very important to her. Absolutely. And if you were, I was already married when I was working for her. But if you're already married, she was definitely looking to pair you up. That is entirely true. I did not know this. Okay, so we can I promise we'll turn to substance momentarily. But before we do, can I ask, so she's worried about the romantic prospects of her law clerk. She also seemed really worried about the fitness level of people around her. So can I ask for the uninitiated, Ona, will you talk a little bit about the justice's famous aerobics classes? Yes. The justice had an aerobics class every morning up in the quote unquote

highest court in the land. That's this basketball court up above the Supreme Court. So up in the attic of the Supreme Court, there's a basketball court where you're not allowed to play basketball while the court's in session because you can, in fact, hear it in the courtroom.

And she used to have our exercise class every morning at, was it like 7.30 or 8? It felt ungodly early at the time. It was so early. That's aggressive.

It's aggressive, especially if you had had to be up, you know, past midnight working the night before. But as her clerk, you were expected to be there every day, ready to go for aerobics with a bunch of her friends from the neighborhood. So it was this class full of her friends from the neighborhood and a few clerks. And yeah, it was quite memorable. We did step aerobics. We did a bunch of different things. Lots of aerobics that I had never tried before. And that was quite interesting. She seemed very, very sort of sporty. Like I gave her a tour at UVA once and she was like, she wanted to walk everywhere. And then she did

another tour at Monticello after that. And then she told me that she was taking her clerks to hike Crabapple Falls and she must have been like 68 at this point in time I was like that's a lot of walking oh yeah she was totally sporty I mean like she had us walk from the court all the way down to see the cherry blossoms because that was another thing she it was important to her that we that we go see so we walked all the way from the court down to the which is not a small walk and then she organized a clerk's outing where we uh went uh boating we were we were yeah we were like rowing and like a whole day of like you know yeah rafting and rowing. And she was right in there with all of us, you know, jumping right into the boat, you know, to do her part. Yeah, no, she was she was incredibly sporty. I mean, I think part of this comes from her, you know, growing up on a ranch and like being very physically active as a kid.

And I think she was really that for her, that was something that was really important. And she wanted all of us to make sure that we kept that as part of our lives, too. I need to jump in on this aerobics thing, because it illustrates the grand contradictions that were that Justice O'Connor embodied. Yes, she was sporty. Yes, she was the first woman justice of the Supreme Court. And she didn't let men come to the aerobics class. So blind spot. Yeah, right. So well, I wouldn't say she didn't let none of us were eager. Because as Ona pointed out, it was super well, yeah, at that time of the morning, I was happy to be blind asleep because so what it functionally meant was that all of the female law clerks had to come to work earlier than the, that's fundamentally what it meant.

And meanwhile, we, my male co-clerk and I were playing basketball at a sort of regular afternoon time at the court, in the court, bouncing the ball around when we were allowed to do so. And she was quite protective of that time too. Like one time, you know, the police officers showed up to play basketball and it turns out that in a basketball game between the police officers of the Supreme Court and the law clerks of the Supreme Court, it's very clear who is going to win. And we came down and kind of like pouted a little bit.

And the next thing we knew, there was a sign up in the stairwell that said, this time of day is reserved for law clerks basketball. a sign that I believe still remains up in the court. And so it was highly gendered. You know, she really wanted everybody to be sporty, but she also wanted her senior friends to be, you know, gender segregated with only her female law clerks. And the aerobics classes continued after she retired so they were still going on at the court you know when i was clerking there although they weren't every day and if i recall they had moved to later in the day

and less frequently when i was there they were still early and the thing is you weren't like as i clerk for just stevens and we were not required but we had heard about them and my female co-clerks and I, there were three of us, decided to show up once because we thought it would be fun. And no one had told us that if you come once, you are thereafter expected to always come. And this luckily didn't start until probably April in like nine months into the 12 months. But we were stuck going essentially. It wasn't every day at that point. I think it was twice a week. But we were stuck going twice a week. And when I say this was a pretty low impact laid back aerobics. And we were like going twice a week. And when I say this, it was a pretty low-impact, laid-back aerobics.

And we were like, if we're going to spend an hour working out, we would like to break a sweat. Yes, that is true. So we couldn't touch the weights and stuff a little bit. That is true. Almost everyone who went to this aerobics class then went for a run, too. Right, to get actual exercise. But you did feel like you were touching history. I mean, she was retired at the point that, you know, when I was there, and I'm sure it felt like that for everyone.

Absolutely, absolutely, yeah. Jazzerc were touching history. I mean, she was retired to the point that, you know, when I was there, and I'm sure it felt like that for everyone. Absolutely. Absolutely, yeah. Jazzercising with history. Yes. Yeah, but I think once or twice would have done it, right, Kate? Like, you didn't need to be all of a sudden stuck doing it. I was going to say, Kate, that's kind of how cults recruit, too. Like, you come once and you can't ever leave.

Never leave. Let me pivot to something more substantive. Justice O'Connor was really notable in that she's not just the first woman to join the court. She joins after Ronald Reagan has made this campaign pledge to nominate a woman. He looks around the federal bench, and regrettably, the Republicans have not appointed a number of women to the federal appeals courts, although Jimmy Carter has, but he obviously can't appoint one of those. So he looks a little further afield into the state courts. He finds Sandra Day O'Connor. She's not even on the Arizona Supreme Court. She's on an intermediate appellate court in Arizona. And she has come to the court relatively recently from a career in politics. So she had been a state legislator.

And she's one of the few justices who had that profile in politics. Earl Warren notably was one. Hugo Black, for example, was a senator from Alabama. But it's not a profile that you see today where it really is. I think she's the last justice. She's the last justice to get voted for. Like outside of their confirmation vote. Was Souter elected AG? I don't think he was elected.

He wasn't elected. No, he was appointed or something. Yeah, so maybe she's not. So she actually had to go get votes. How do you think that time in politics shaped her jurisprudence as a justice? I think it played a really important role. I mean, I do think it is part of the reason it was part of what motivated her sense of humility about the role of the court. So, I mean, I think she really felt like the court should not be overstepping and playing a highly political role. She's sometimes criticized for that, for her so-called minimalism. But I think that that really was motivated by this sense that she knew how hard politics were.

She sort of felt like some of these fundamental decisions really should be made in the political branches. She, of course, was also very much a partisan of the states, and the states being able to make their decisions as well, you know, having been involved in Arizona state politics, not national politics, you know, so that I think that also shaped her view. And she was an old school Republican too, in terms of, you know, she kind of came at these questions from a very moderate perspective. And you see that reflected all over her jurisprudence. It's part of the reason she was sort of the classic swing justice is because she was sort of always looking for kind of the minimal step to kind of resolve a question. She didn't want to sort of blow things

up. She really wanted to sort of find a way through that was respectful of the political branches and that where possible would sort of send things back to the political branches or leave it to the political branches to resolve the question. So I saw that all over, you know, working with her and how she approached these questions. There was also a way in which she paid attention to the way the other justices were thinking and was actively interested in where they were in things because she didn't go back to her office. And I always had the sense that Justice Souter went back and said, well, great, I'm going to do my thing. And if you agree, great. And if you don't agree, well, you'll write separately or maybe I'll edit. Whereas she was

actively considering how everybody else was approaching it when she was writing and thinking and when she was deciding whether to sign on. So, you know, she would say things like ask you outright. So what do you think Justice Ginsburg's thinking about this? Or what are her clerks saying about where she's coming from? And I think we thought of that as thoroughly natural in what our job was there. And I think other chambers might have said, she told you what? She said, huh? You mean you think we're in the same building with us?

You're supposed to just do this in your ivory tower. And then we come from our ivory tower and we meet in the middle, and we try to make a join line out of it. So if I could just add, you know, not as someone who's clerked for Justice O'Connor, obviously, I think one area where her previous career in politics really did influence her was in campaign finance. You know, she co-wrote the opinion that upheld in significant part, you know, the bipartisan campaign finance finance reform act BICRA in McConnell versus FEC that the court later, you know, overruled and chipped away at in Citizens United. And I think one reason she did that is because her experience in politics gave her some insight into how unregulated political spending did give rise to corruption and an appearance of corruption. And she was

particularly worried about the consequence of, you know, that for judicial elections as well, you know, and she pushed later on in her career for judges to be appointed rather than elected, you know, in part for that reason. But, you know, as always, there's people are multifaceted, and things are complicated, because even though, you know, she was someone who, in a lot of respects, and different areas wanted to push things through the political process in other areas. One very significant example, Bush versus Gore, she had the court intervene in the political process, helping draft the opinion that halted the recount in Florida and gave the election to George Bush, which then put Bush in a position to select her replacement, Samuel Alito, the author of the opinion overruling Roe when Justice O'Connor had famously helped craft the

opinion keeping Roe in Planned Parenthood versus Casey. And so I guess like, not to ask about that specifically, but you know, what do you make of this kind of like complicated legacy? Yeah, I mean, I think that's a case where instincts led her astray is my own view. I think she saw kind of political mess ahead and thought, well, the court can kind of put an end to this mess. And this is probably where it's going to end up anyway. And but I think, you know, I actually I don't know, but I think she probably came to regret that decision. I think that that decision was just so nakedly political and so nakedly poorly reasoned. It was just very hard to defend. And it was so out of line with how she normally thought about cases that it kind of, I think, laid bare kind of political valence of the court that I think she had generally in her work really resisted.

So, yeah, I see that as really out of step with how she generally decided cases. And I think, you know, it has to be admitted as something of a stain on her legacy. That's my own view. I agree entirely on that. One thing that's notable about her is she rarely looked back. I didn't ever spend time. She didn't talk about the things that had gone before or why. She just was very much a, it's kind of hackneyed, like a cowgirl mentality.

Like, we just got to keep going forward, right? You know, Justice, what about that thing, you know, seven years ago? That was seven years ago. Today's today. Let's just keep going. You know, he's president after all. I have put in there. Let's just keep going. And, you know, and I don a case in which she was on the court to actually see all the way through her position. But partisan gerrymandering is another instance in a place where an instinct to kind of remand to or leave to the political process, I think sort of paved the way for the court's decision in Rucho, which, you know, held non-justiciable challenges to

partisan gerrymanders. And I always thought in those cases, just Davis, and then sort of the line of cases in which the court is like wrestling with, you know, whether there is any kind of manageable set of standards that courts could devise or deploy to, you know, rein in partisan gerrymandering. She always took the position that like, no, there's not really a defensible line that can be drawn. And so courts just need to stay out of it. And the political process self corrects. And let's just sort of let that play out. And I always thought she had just kind of an outsized influence. The justices took really seriously her assessment of the kind of political dynamics at play in drawing legislative districts, and correctly so because she was the only one of

them who had ever been in the inside of any of those processes. And yet I think she was deeply wrong about the self-correcting nature of the political process and the kind of, you know, according imperative of courts to stay their hands. And so in some ways, like, I think she is kind of the architect, if not directly, at least kind of indirectly, or at least a significant force in what leads the court to Rucho, which is enormously problematic. So I do think it's places where instincts that in some contexts

are really well-founded and correct can lead to really problematic results. I think gerrymandering is an enormous problem for our democracy. So I think that's part of her legacy, too. I think she may have fallen into the trap of thinking that most people were like her, and that all those people out there who were these problematic legislators or whatever, yeah, but they're like me. And at the end of the day, they'll do something reasonable. And I think that, you know, she wouldn't imagine that someone like Trump could ever been president, right? She absolutely would be somebody who'd say, no, nobody, none of the Republicans will ever vote for this person. That was a limitation, I think, to the way she thought about it. I think one thing that was

really admirable about her is she had a very specific kind of background. As you say, Ona, she was a daughter of the West. She grew up dividing her time between her family's ranch in Arizona and going to school in El Paso. And she really didn't have the same sort of background in terms of race relations that some of her other colleagues did. And so this, I think, was quite evident in the 1989 case, Richmond versus Croson, where she wrote for the majority and applied strict scrutiny to affirmative action, which prompted a really stinging dissent from Justice Thurgood Marshall, who was a son of Baltimore and had been raised in a segregated environment. And, you know,

we kind of called her on the carpet for sort of missing the perverseness of shutting down Richmond, the seat of the Confederacy, when it was actually trying to make amends for its quite significant past. She later wrote on the occasion of Justice Marshall's retirement, a really moving piece in the Stanford Law Review called The Influence of a Reconteur, in which she talked about how her relationship with Justice Marshall, someone who came from a completely different world from her, really helped shape her thinking about so many things, and especially their work together on the court and the work they did about race. And then, you know, fast forward a little over 10 years later, she's writing the majority opinion in Grutter versus Bollinger, that upholds affirmative action at a time when everyone thinks that the court is ready to dismantle it. And, you know, again, to Kate's point,

you know, she may have been the architect for this sort of sunsetting clause argument that we saw deployed in Students for Fair Admissions versus Harvard, But she does save it and salvage it. And it seems like she learned a lot from her experience with her colleagues. And it's not clear that the same kind of open minded learning is happening on the court right now. My sense is that that's very true that she was open, she came from a very specific background. You know, I mean, she, she didn't see many people when she was open. She came from a very specific background. You know, I mean, she didn't see many people when she was little growing up, much less, you know, people from different backgrounds. Like on that ranch, there were just not that many people she ended up having to move to the big city, which was not really a very big city in order to go to school because there wasn't

really a school that was adequate where she was at the ranch. But, you know, I think over time she was open to learning from the people that she was around. I think you see the same thing when it comes to her evolution on questions of, you know, the importance of same-sex marriage. And, you know, I think her, she's, as she got to know people, she was very open to learning from them and learning from people who are different from her. And she was interested in people

and understanding their stories and their perspective. And, you know, so you do see her changing over time and learning from those experiences. And I think that that's actually one of the things that I appreciate most about her is, you know, she came from this kind of historical, you know, she came from a background where she didn't have that kind of exposure. But then when she did, she was open to learning and changing her mind. And you can see lots of examples of where that happened. asked a vote to invalidate a law prohibiting consensual sexual intimacy between persons of the same sex and concluded that that law unconstitutionally discriminated against persons on the basis of sexual orientation.

Exactly. And I think some of that came from actually learning from our clerks. So I think that that was that was really important that she was open to that and made a real difference in the law in ways that were really transformative for the country. I had a very personal experience with that. My year, which included the Bikra case, but also included the Pledge of Allegiance challenge, where Michael Newdow had challenged the Pledge of Allegiance as being an unconstitutional violation or violation of the Establishment Clause. And it fell to me originally, and I was nervous about this. I was raised vaguely Hindu. I'm certainly no monotheist.

And I had talked to her repeatedly about how I thought, you know, if you really were serious about it, this was an establishment of religion. Like, and she said, well, come on, it's not really, come on, it doesn't really bother you. And I was like, yeah, it actually it does it sort of does because i know it used to didn't say under god until a bunch of people voted in for it to say under god and they were doing it in response to communism and it was you know it was an add-on it was a very specific thing and i don't you know the add-on does make me your whole idea about establishment class jurisprudence is whether it

makes you feel like an outsider and here i am in your chamber is is whether it makes you feel like an outsider. And here I am in your chambers telling you it makes me feel like an outsider. And I expected it to be a blow-off conversation. Like I said my piece, now I will go put my tail between my legs and run back and do whatever. But she actually listened. And she listened and she came back

and we ended up writing a concurrence about it. And she said, I know this is hard for you. I know this is hard for you. I know this is hard for you. And I just want you to know, I think there's something to what you said. And still, you're going to write it my way, which, of course, was reasonable. But it was a real sense. She wasn't just hearing me out for the purposes. She really actually was listening.

What do you think Justice O'Connor would make of this court? And maybe I'll include in that the Dobbs decision, which of course overturns Roe and Casey, and Justice O'Connor famously joined with Justice Kennedy and Justice Souter to write the opinion upholding the sort of core principles of Roe and Casey. You can comment on Dobbs specifically or more generally on where this court is and what Justice O'Connor would make of it. And maybe I can just add in one kind of like additional thing to that question, which is, it sounds like she is so good at learning from her life experience and the people around her. And yet one thing it seemed like she didn't anticipate or see was the changing face of the Republican Party, right? And the kinds of nominees that the Republican

Party would be putting up to replace her and what the party would become over the next few decades, like so unlike her. Well, you know, I'll just say I think she would be pretty dismayed by the sort of naked political nature of this court and its willingness to kind of throw over any kind of limitations. I mean, her legacy has been really undone by this court. All these carefully crafted, modest, minimalist decisions that she wrote for when she was on the court, when she carefully crafted, modest, minimalist decisions that she wrote for when she was on the court, when she was the swing justice, where she was carefully crafting these compromises that were really sort of trying to sort of to keep it kind of modest court in line with with her views about the appropriate role of the court, this court has kind of just gone for it.

And, you know, I don't think that that would have been something that she would have approved of. I think she would have been pretty dismayed by it. I think she would have been really unhappy that that's the direction it's gone. I think she would have thought that the court really has acted in ways that are inappropriate and not the role that the court ought to be playing in our democratic government. You know, when I worked there, there was a day I went into her office and we were talking and I don't know why, but there was a big protest outside on the front steps of the court. I think it was a pro-life protest, but it was one or the other side. And there was this whole bunch of people out there. And she kind of pulled the curtains aside and looked out the window. And I looked out the

window too. And she said, this is a bad thing. This isn't a place where people should be protesting. It's not, I'm not sure if those were her exact words, but essentially she was saying, this is not good. You don't want the Supreme Court to be a focus of this kind of advocacy. That's not what we're here for. And so I agree completely. She would be shocked and dismayed. She would be saying what this court is arrogating to itself, a maximalist view of its role. Anytime you're revisiting decisions from 30, 40, 50 years ago, as you all know, the environmental ones are particularly galling to me. You're way out of bounds. This isn't what you should be doing. And I think she was dismayed at the time and would be even more dismayed now. We're so sorry for your loss. And we thank you for sharing this with us today.

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