Strict Scrutiny - That’s Just Like, Your Opinion, Man

Episode Date: November 1, 2021

Kate, Melissa, and Leah preview the whopper first week of the November sitting. They are joined by Joseph Blocher, Professor of Law at Duke Law, to discuss NYSRPA v. Bruen. 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, as well as these days, Texas SB8. We're your hosts. I'm Kate Shaw. I'm Melissa Murray.

And I'm Leah Littman. And we've got a banger of an episode in store for you since, as we noted on our brief 15-minute mini episode from about 10 days ago, the Supreme Court has added two cases regarding Texas SB8 to the court's November calendar. In order to make room for the time it will take to cover these cases, we're going to flag two items of news and then proceed straight to case previews because the first week of the November sitting has more than just the cases on SB8, even though those cases alone would make it a blockbuster argument session. Okay, so the first piece of news we wanted to flag involves a horrifying sequence of events in Oklahoma on Thursday night. So basically,

John Grant was on death row in Oklahoma, scheduled to be executed on Thursday. But on Wednesday, the Tenth Circuit Court of Appeals stayed his execution because he was one of the plaintiffs in a case challenging Oklahoma's lethal injection protocol, about which there are very serious concerns. The state of Oklahoma asked the court to lift the 10th Circuit stay, and the court did, voting 5-3 with Gorsuch recused and with no explanation. And this vote had the effect of restoring Grant's execution to the calendar, despite, once again, the very significant risks that attached to Oklahoma's lethal injection protocol, risks that meant there was a significant chance he would be executing using a method

that is akin to being tortured to death. Indeed, Oklahoma's last two executions were horribly botched. Oklahoma has not made significant changes to its lethal injection protocols since then. So the Supreme Court intervened to reinstate a scheduled execution that had been stayed because of real concerns

about that execution. And lo and behold, it was a ghastly procedure in which Grant convulsed, vomited repeatedly, was in obvious and evident agony for the duration of the execution. And lo and behold, it was a ghastly procedure in which Grant convulsed, vomited repeatedly, was in obvious and evident agony for the duration of the execution. And it seems like, you know, maybe the court should have been more concerned with the claim, not vacated the stay that allowed Grant to present the claim. You know, I got to say, basically, I think that this is what I'm going to point to next time someone says, because I feel like I hear this all the time, what's the big deal about the shadow docket? The court has to have the power to act quickly in certain kinds of cases.

This was just an unconscionable intervention by the court to upset the status quo, which was that there was a stay in effect with truly catastrophic consequences. Another piece of news that we wanted to flag for you is maybe in the vein of non-news, and it's specifically what on earth is happening with the Maine vaccine mandate. So as you know, Maine has required public employees to be vaccinated or they will not be able to perform their jobs or work. And so this is obviously an issue that has been seen around the country and has been the subject of other kinds of applications to the court for emergency relief. And here, too, there were emergency applications to enjoin the enforcement of the main vaccination mandate, and the First Circuit upheld the mandate. It is notable that this particular mandate was challenged on religious

liberty grounds. That's kind of different from some of the other challenges that we've seen over the course of the last few months, the Second Circuit, the Seventh Circuit. Those did not have religious liberty claims in it. In any event, the main vaccination mandate went into effect on Friday, and the court still hasn't acted on the request for emergency relief. And we're recording this on Friday afternoon. The case is called Doe's versus Mills. And Stephen Macy of The Economist speculates on Twitter that the inclusion of those religious liberty claims has complicated things somewhat and perhaps suggests that there is some infighting at one first street about this, as opposed to the sort of reflexive upholdings that we saw in the

Seventh Circuit and the Second Circuit. Yeah, they were too busy, you know, allowing Oklahoma to torture this person to death in order to act on, you know, this emergency application. So, you know, it's really a question of priorities here. And our boy, Sam Capitolito, you know, just needed to deal with that Oklahoma stay before turning to this challenge. I did want to highlight an email we received from a listener suggesting an alternative nickname for this Justice Alito persona that Kate, the real victims in society are the prosecutors who are no longer able to quickly execute people in the same way they used to be able to do, and that there is a, quote, a guerrilla war against the death penalty, and that this is cause for concern. Anyway, Kate dubbed this Capitolito. A listener suggested maybe the better word would be Killito. We put it to you, listeners. These are questions that we cannot and will not try to answer for you.

I have to say I think capital LITO is very clever. I also I think capital LITO. I'm willing to cede. I like KILITO. I think the listener actually has a better. A capital LITO rolls off the tongue in a way that maybe I just like saying it more. We workshopped these for a while. So I think we'll keep trying out both.

After we recorded this episode, things started burning up, Jonas Brothers style, over at 1 First Street, and maybe the rest of the earth, too. The Supreme Court had a busy Friday evening. We'll cover these developments more in future episodes, but wanted to note them now for you. First, in Doe's v. Mills, the Supreme Court declined to issue an emergency injunction to prevent Maine from enforcing its vaccination requirement for public employees, leaving the vaccination requirement in place. The challengers went to the shadow docket, asking the court for an emergency injunction.

A majority of the Supreme Court denied their request. Three justices, Justices Gorsuch, Thomas, and Alito would have granted the challenger's request for an injunction. Justice Barrett, joined by Justice Kavanaugh, agreed that an emergency injunction should not issue, at least for now. She said the Supreme Court would not grant an emergency injunction because the case reached the court on the shadow docket. And if plaintiffs were entitled to extraordinary relief on the shadow docket, that could force the court's hand to decide questions or issues before the court's hand to decide questions or issues before the court actually wanted to decide those questions. That is, before the court decided to grant a case to be heard on its regular docket. So it's possible, even when this issue gets to the

Supreme Court in the ordinary course, that Justice Barrett and Justice Kavanaugh would join the dissenters, but it's hard to know or say, since they seem to be relying on discretionary judgments and some set of unspecified criteria to decline to issue the injunction here. Of note, Justice Barrett called the Supreme Court shadow docket the emergency docket, clearly a hat tip to Justice Alito's speech responding to criticism of the shadow docket. They're apparently trying to rebrand it as the emergency docket, to which I say, stop trying to make the emergency docket happen. It's not going to happen, particularly because we don't know what criteria Justice Barrett and Justice Kavanaugh are applying to grant emergency relief besides some consideration

of the merits. So not super transparent, which is why we're going to continue calling it the shadow docket. Second, the court granted certiorari in several cases that will be heard later this term. And oh boy, are there some doozies. First, the Supreme Court agreed to hear several cases challenging the Environmental Protection Agency's authority to regulate greenhouse gases. Planet Earth is thinking, this is fine. Formally, the petitions asked the court to decide whether the relevant statutes authorized the EPA to curb greenhouse gases. But at least one of the petitions asks the court to decide whether Congress could give the EPA this authority and asks the court to revive the so-called non-delegation doctrine, which limits Congress's

ability to give federal agencies the power to enact rules governing private citizens. We've actually got an episode in the Hopper on this topic, which will contain a more in-depth discussion. So stay tuned for that. For now, I also want to say that even if the Supreme Court doesn't formally decide these cases on constitutional grounds by holding that Congress lacks the authority to give agencies the power to make binding rules, those constitutional ideas are very much in the background and driving these cases in big ways. Specifically, the arguments about why the court should read the statute not to allow the EPA to regulate greenhouse gases, sound and constitutional concerns with giving agencies that kind of authority, the authority to regulate private parties and in

doing so to decide major questions. Second, the Supreme Court agreed to hear some cases about whether some Republican-led states can intervene to defend and possibly reinstate the Trump administration's public charge rule that the Biden administration declined to defend. The public charge rule would have excluded immigrants on several grounds, including the chance that they might use non-cash public assistance, such as Medicaid. Several courts had invalidated the public charge rule, finding, among other things, that it discriminated against persons with disabilities or was arbitrary and capricious. And the Biden administration declined to defend the rule and challenge those rulings, which are what the Republican-led states are trying to do now.

Okay, so now on to the segment of our podcast, a recurring segment in which we discuss SB8. So as we mentioned in our very short emergency podcast, the court has agreed to hear two cases, the one filed by the abortion providers and the one filed by the United States that involve challenges to SB8. We are becoming something of an SB8 Stan podcast, which is unfortunate that it's come to this. But in any event, the love is mutual. Jonathan Mitchell loves us. We love him, right? It goes in both directions for sure. So as you know, listeners, SB eight is the Texas law that has effectively shut down abortion access in that state. The law allows anyone to sue an abortion provider who performs an abortion more than six weeks after a person's last period and to sue anyone who assists someone in obtaining an abortion

or providing abortion more than six weeks after a person's last period. Because providers face liability in the tens of thousands of dollars, as well as possibly being shut down in the event that they are sued, not to mention the fact that for professional licensing purposes, they also have to disclose that they have been sued. Basically, with all of this in mind, providers have essentially stopped performing abortions more than six weeks after a person's last period. And that means that they are not providing the vast majority of sought abortions. Formally, the questions in these cases are about the threshold procedural issues that will decide whether a court can reach the merits of the challenges to SB 8. That is, whether a court can decide whether SB 8 is unconstitutional

and whether a court can enjoin the law. That is, prevent the law from being enforced or make it so it's like the law doesn't exist at all. But of course, although central to the case are these threshold procedural questions, the justices' views on the underlying merits questions might creep into their analysis of the procedural questions for any number of reasons, right? So if you think it's a problem for a state to effectively prohibit people from exercising constitutional rights without any prospect of judicial review, but you don't actually think there's a constitutional right to decide whether to have an abortion prior to viability, then you might be fine with SB8, but you might not be fine with a law that restricts, say, the right to own or carry a firearm.

Just to say. For example, plucking from thin air. So I do think the merits questions lurk. But we should be clear that in important respects, whether SB8 is constitutional is not squarely before the court. Again, though, that doesn't mean that these decisions or the questions that they surface are not important. And it doesn't mean that these decisions will not have substantive effects on the ground. It also doesn't mean that the cases and the oral arguments won't give us some hints as to what particular justices might do vis-a-vis the future of constitutional protections for abortion. So, for example, if the justices don't allow either of

these lawsuits to proceed, that might be a pretty good indication that this court is in a position to allow states to bulldoze over Roe and essentially nullify its protections, perhaps because some majority of justices, like the author of SB8, thinks that Roe is wrong and a judicially invented right. By contrast, if the justices allow either one of these lawsuits to proceed, we don't really know what they are going to do about the substantive protections of Roe. That is, what kinds of abortion restrictions they might say actually do violate the Constitution, because all they will have done here is to say that you get to go to court and have your argument made that this law violates the Constitution. So this is kind of a mixed bag

in terms of what it may mean going forward, but I do think we will get some hints of what the future holds. Yeah, and I think this is important to clarify for many reasons, but I'll just highlight one now. There is a possibility that we are hurtling toward a universe where the Supreme Court allows one or both of the lawsuits against SBH to proceed, and therefore generates a ton of press about how principled, institutionalist, and moderate the court is. Before the court comes back and dobs, the Mississippi abortion case scheduled for argument exactly one month after the SB argument, and in that Mississippi case, eviscerates the protections of Roe, either by overruling that decision or by allowing states to ban abortions

that occur before viability. Well, here's an even more kind of frightening prospect. They could allow one or both of the lawsuits to proceed, again, looking moderate, consensus driven, whatever. And then they could do the sort of minimalist approach to to proceed, again, looking moderate, consensus-driven, whatever. And then they could do the sort of minimalist approach to Dobbs, which is just to sort of reorder viability as a marker. And then everyone in the media will be, Roe is saved, Roe is saved. And we will be getting emails from all the men who tell us that we are being hysterical

ladies and there's nothing wrong here. Lots of ladies can have abortions. But we, of course, will be like, that's not actually what's happening. And that will be the story. The court has saved Roe when in fact the court has actually decimated the landscape by sowing confusion about what is actually constitutional after viability is eviscerated as a marker. Yeah. And we'll certainly talk more about that possibility later. But just to flag now, that possibility that states can prohibit abortions that occur before viability is a theory that Texas put forward as to why SB 8 is even constitutional. So if the court does that, quote, minimalist ground in Dobbs, it is not minimalist at all and opening the door to pre-viability bans, full stop. Okay, but speaking of the author of SB8, it appears that strict scrutiny fanboys, Jonathan Mitchell and Samuel Alito, will be reunited for the oral arguments in these cases. Mitchell, the author of SB8, is representing some of the interveners in these

lawsuits, parties who asked the courts to allow them to intervene and participate in the litigation surrounding the law. The court granted his request to intervene and participate in the argument, and he is scheduled to do so. This is what I am thinking in my Halloween fantasy brain. Squid game, but make it oral argument. Like Justice Kagan just goes line by line through the briefs Jonathan Mitchell has filed in the litigation and asks him hypotheticals based on those sentences. Like, which opinions of ours are you free to ignore? Or what other rights can you box out the judiciary from enforcing? Or could a city in Texas or Texas itself authorize anyone to sue a plaintiff in SB8 litigation for $20,000 payable to abortion providers and delegate that to private individuals, not the state?

Just some questions. Okay, that would be kind of amazing. She just like sat there and started reading. I am manifesting Justice Kagan just reading, reading portions of the brief at argument. And in an ideal universe, I would see her face while she's doing it. After all, they are called opinions for a reason. You just manifest Justice Breyer just like, please just cede all your time to Justice Kagan so she can maximally do this. That will never happen, Kate.

I'm manifesting it. That will never happen. Here's what I will manifest from Justice Breyer. Anytime Jonathan Mitchell opens his mouth, Justice Breyer is allowed to say the following and only the following. That's just like your opinion, man. And then you can stop. I will allow that. Nothing else.

To be clear, the hypotheticals that Leah posed in the guise of one Elena Kagan aren't actually that fanciful. These are not hyperbolic hypotheticals. In fact, Jezebel reports that a Texas Republican state representative wrote a letter to Texas Attorney General Paxton asking him whether private individuals were required to recognize same-sex marriages. And the letter invoked, dun-dun-dun, Jonathan Mitchell's theory, the theory behind SB8, that federal courts don't strike down laws. They only have the power to enjoin state officials or offices from enforcing them. So thank you, Jonathan Mitchell, for putting that out in the ether. Amazing. I feel like also we should just underscore one thing, which is that the things we were saying, not all of them, but most of them were in the briefs that Mitchell filed, right?

So he literally wrote the line, we have boxed out the judiciary from hearing cases about whether this law is constitutional. And Supreme Court opinions aren't the law. They are called, I think italicized? Opinions, after all. So this sounds absurd. It's not. This is verbatim from his earlier brief. I think this is a good point to interject. Like most of the time, when the men slide into our DMs to tell us that we're being hyperbolic, hysterical ladies with lady parts, we actually later get proven correct, or we were already just citing from the papers anyway. Right? Right. Like, of course, no one would actually argue that they don't have to comply with Obergefell ladies. That's insane. Well, it turns out, it turns out. Along the lines in Jonathan Mitchell's brief vibe, Georgetown Law Appellate

Immersion Clinic's Hannah Mullen had this hilarious observation that I just need to put on the air because it both made me laugh and has also given me night terrors every night since I've read it. And she said, staring Justice Kagan in the face and arguing that I've outsmarted the Supreme Court is actually my recurring nightmare. And it seems like that that is about to be the world that, you know, some Texas officials and Jonathan Mitchell will be living in. Again, maybe that's the reason that Jonathan Mitchell's brief before the court is a little more toned down than what we have seen from him before. So rather than saying checkmate libs, we boxed you out, it actually goes through all of the doctrine

and makes arguments about why these different suits can't proceed. So a much more measured tone than what we have seen before from Jonathan Mitchell. It is definitely more measured, but in its sort of different stylistic way, it is still inclined to say the quiet part loud, right? Like at one point, the brief says, it is not that SB8 is chilling providers. It is you, Supreme Court, your grant in Dobbs that is chilling them. And sort of left unspoken but obviously implied is that Roe is at best on life support. And that's why they're scared to engage in conduct that is technically presently constitutionally protected. But, you know, there's like this kind of time travel dimension

to the argument or something. Like they know it's not long for this world. Kate, we cannot expect a sea change this quickly. I mean, you were asking for a 180 degree turnaround and I say we give points for progress and we've definitely made progress here. If it is measured in tone, it is not measured in substance. Okay, we'll give them some tone points.

That's fair. Tone is important. It is. Tone is important. So at the argument, we will be able to hear Mitchell's tone in person. But the oral argument is also noteworthy because it is going to be the first argument by Elizabeth Perlager as the Senate-confirmed Solicitor General of the United

States. She was just confirmed on Thursday as SG. Elizabeth is the second woman to hold this post, Senate-confirmed, that is. At least one other woman, New York Solicitor General Barbara Underwood, who will also argue during the sitting, was the acting Solicitor General for a time. But the first Senate-confirmed female SG was Prelogger's former boss, Justice Elena Kagan. Elizabeth was one of the clerks who clerked for Kagan during her first year on the court. And they both made their debuts as SG in big cases. US v. Texas is huge. Justice Kagan made her debut in the re-argument of Citizens United. So Prelogger has big shoes to fill, but I have no doubt she's

going to do a tremendous job. So now maybe let's go to an overview of the legal questions in these cases. They're being argued on the same day, but they are two separate cases. And the first case is Whole Woman's Health versus Jackson. Okay, so this is the case filed by the abortion providers against several state officials. So that's state court judges, clerks, attorney general, other state officials, as well as a private individual affiliated with an organization that set up a website to collect tips about unlawful abortions in order to facilitate lawsuits under SB8. The provider sought an injunction that would prevent the officials or Dixon, who's the private individual, from enforcing the law, including preventing them from docketing or processing

cases filed under SB8. The district court denied the defendant's motion to dismiss, and the defendants appealed since several of these defendants argued they were immune from lawsuit, and you can immediately appeal such a denial. So the Fifth Circuit stayed the district court proceedings days before the district court was set to consider the provider's request for an injunction, and the Supreme Court refused to vacate that stay or to grant the providers an emergency injunction, which is what happened that basically allowed the law to go into effect on September 1st. Right. So the main arguments about why this lawsuit cannot go forward turn on fairly technical questions about federal court and procedure. And so we'll just briefly explain them. So bear with us for a little bit. The first important doctrine to keep in mind for oral

argument is sovereign immunity. So the Supreme Court has interpreted the 11th Amendment and the general structure of the Constitution to prohibit private individuals from suing states without the state's consent. However, in order to ensure that the states are still bound by the rule of law, the Supreme Court in ex parte Young says that private individuals can sue a state official who has some connection with the enforcement of the act and through that suit of that state official can seek prospective injunctive relief against the official, so i.e. an injunction to prevent them from enforcing the law. But that's basically the basis for SB 8. If the state official does not have some connection with the enforcement of the act, then the plaintiff is merely making

him a party as a representative of the state and thereby attempting to make the state a party in violation of the 11th Amendment. So because SB 8 delegates its enforcement to these private individuals, what the abortion providers have done is sued those state court judges and the state officials. And the question here is whether there is a sufficient connection between those named defendants with the enforcement of the act, sufficient to provide a basis to confer jurisdiction. So the Texas officials argue that no state official has any connection with the enforcement of the act, in part because section 207 of the act, entitled Limitations on Public Enforcement, provides that the requirements of this subchapter shall be enforced exclusively through the private civil

actions that Melissa just mentioned. No enforcement may be taken or threatened by the state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state. The providers argue that state medical departments might still take action against licensed doctors who are in violation of the law, even if the department officials cannot sue under SB 8. The state officials argue that the department's general authority was limited by SB 8, which amends the laws governing the department's authority as follows. The department shall enforce this chapter except for subchapter H, which is SB8, which shall be enforced exclusively through the private civil enforcement actions. We should note, however, that at least one complaint has been filed with the department overseeing doctors in Texas, alleging that a doctor licensed in Texas performed

an abortion in violation of SB8. And more generally, the providers argue that Ex parte young represents a compromise necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to the supreme authority of the united states they say that states can't structure a law so as to evade any pre-enforcement review about the constitutionality of that law like yeah you do need to name a state official in order to challenge a state law as being unconstitutional but a state cannot opt out of being sued altogether right the reason you can sue a state official is in order to ensure we have a regime of the rule of law. And that isn't something a state can just opt out of the way Texas has tried to do here. The second important doctrine for purposes of oral argument is judicial immunity. The preceding arguments about sovereign immunity relate mostly to the

law enforcement officers and the executive branch officials who would be the ones enforcing this law but for its odd enforcement structure. But the plaintiffs in this case also sued state court judges and state court clerks, and these are the people who will clearly be involved in any litigation under SBA because they have to docket the cases and then ultimately dispose of the cases that are filed under the challenge statute. The state judges, however, argue that they are immune from suit because they would be acting in their general capacity as judges. Judges are absolutely immune from suits for damages when they are acting in their judicial function. And this comes from a case from 1978 called Stump v. Sparkman. And side note, Stump v. Sparkman generally stands for the proposition of judicial immunity, but it is also a major reproductive rights case because the damages sought from the judge were in conjunction with a forced sterilization of a cognitively disabled woman.

But I digress. The Supreme Court has also held that a plaintiff could obtain an injunction against a state magistrate judge who had a practice of setting bail and incarcerating persons who could not post bail for non-jailable offenses. This was Pulliam v. Allen, a 1984 decision of the court. I have to say, you know, I thought it was settled that you could seek injunctions against judges, you know, when they are acting unconstitutionally. And it wasn't just me who thought this question was settled. That is, whether judicial immunity bars you from suing a judge for injunctive relief. So the canonical federal court's casebook, Hart and Wexler, says, and I quote, the question left open in Consumers Union, that was a case about another topic, whether judicial immunity bars suits for prospective relief was dealt with in polium. Dividing 5-4, the Supreme Court upheld the

injunction. Now, Jonathan Mitchell's brief points out a passage in ex parte young that you can't enjoin judges just when they passively hear random cases brought before them. But I think that just misunderstands how the states are using the courts here as an interim threat in order to chill exercise of constitutional rights. And it also, again, misunderstands the compromise in ex parte young, which is the court requiring you to sue particular state officers in order to allow and ensure the state would be bound by the rule of law. But again, once Texas has opted out of that regime, it has altered the kind of underlying calculus. For similar reasons, I think the arguments that Texas and Mitchell make about how there isn't pre-enforcement review to challenge particular tort lawsuits also missed the point. Those tort lawsuits are, by necessity, one-off lawsuits announcing new theories before the state has necessarily endorsed

them. Here, by contrast, you have a state inviting these lawsuits and explicitly authorizing them through SB 8. So the plaintiffs in this case also sued law clerks, and the immunity of law clerks depends on whether the clerks are assisting judges in performing a judicial function that would otherwise be entitled to immunity. If they are, then judicial immunity might attach. If they are not, then immunity does not attach. The providers argue that merely docketing a case isn't a judicial act. The clerks argue that it is. Let's wrap this all up. So the providers are in the Supreme Court right now asking basically whether a state can insulate from federal court review a law that prohibits the

exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions. So, you know, that sweeps in everything we just talked about. But as I think the question makes clear, and as we said at the outset, the predicate here is that what Texas has done involves prohibiting the exercise of a constitutional right. And so I think we're all going to be looking for some of the justices potentially showing their hands regarding the degree to which abortion remains a protected constitutional right. And now, United States v. Texas. This is the lawsuit by the United States against the state of Texas. The United States sought an injunction, which the district court granted,

and that injunction ran against state officials, including state court judges, and it prohibited them from, among other things, docketing and processing cases filed under SB8. The Fifth Circuit stayed the district court's injunction for the reasons stated in Whole Woman's Health v. Jackson, the case involving the providers, although, as we're about to explain, none of those issues are directly implicated in this case.

The Fifth Circuit also cited the reasons in Whole Woman's Health v. Jackson, the Supreme Court order on the abortion providers lawsuit, even though Sam Alito told me those orders aren't precedential. They're just opinions. Is it Mitchell's brief that refers repeatedly to the holding of that short order? It's just wild. I don't remember whether it's that one or Texas's. But there's just like a repeated, like the holding, the first part of the holding, the

second part of the holding. It's like this was a paragraph. Like do they even have holdings? It was wild. Anyway, so the first issue in the case is standing. So as we have mentioned previously on this podcast, standing requires a plaintiff to show that that plaintiff is injured by the law or the conduct that they are challenging. The United States here argues that it is injured in three ways. First, it says SB8 interferes with a variety of federal programs, federal officers, federal contractors,

by threatening liability where federal policies or regulation require officers or contractors to assist people in exercising constitutional rights, obtaining abortions, or where federal law or policy permits federal officials to obtain abortions. Second, the United States argues that it has an interest in the enforcement of federal law, including the Constitution, where a state has structured a law so as to prevent individual citizens from holding the state to account for violations of federal law. And third, the U.S. argues, relying on In re Debs, that it has standing because the Texas law

burdens interstate commerce. So Debs upheld a suit by the U.S. to enjoin a labor strike on the ground that the strike interfered with interstate commerce. A second issue in the case is whether the United States has a cause of action. A cause of action basically means the legal authorization to sue. Some law or tradition allows you to bring suit. And Congress wrote a statute that allows people whose constitutional rights were violated to sue. Section 1983 provides every person who, under color of any statute, subjects any citizen or other person to the deprivation of any rights secured by the Constitution shall be liable to the party injured. And Texas argues the United States doesn't have a similar cause of action to proceed against Texas. I think this, however, overlooks the Supreme Court's repeated

pronouncements that baked into the structure of the Constitution was the state's consent to suits brought by the federal government. That is, the authorization for those kinds of suits comes from the structure of the Constitution itself. A third issue is whether the injunction can run against the state, either where no state law enforcement officer is involved in the enforcement of the law or where the injunction would run against state judges. Again, I think this is confusing a bunch of issues. On one hand, whether there is state action, which there obviously is, and on the other, whether the United States has to point to a particular state official involved in the enforcement of the law, which it does not, given that the United States can sue Texas, but private individuals cannot. And so private individuals have to name particular state officers, but the United States does not. So bold predictions. Leah, what do you think? You start.

You know, a part of me really thinks they will say that the United States lawsuit can proceed. And if they say that and the abortion providers cannot, I think that will mean laws like SB8 come back with a vengeance during Republican administrations when Republican presidents will not sue to enjoin laws like this. I also think the argument is likely to have, no matter what its ultimate outcome, real handmaid's tale vibes where three of the four lawyers arguing will be met. That seems right. I mean, as I think about how they could possibly write something that permits Texas to do what it has done, but tries to prevent states from doing the same thing with more favored constitutional rights to guns or, you know, religious liberty or things like that. I don't think they can. Like, I think if they let Texas do this, then it is then like off to the races, like any state can decide to single out any

disfavored constitutional right in this way. I think for, as you said many episodes ago, Leah, it's, I actually don't think blue state legislatures are interested in doing this. So I don't actually think we're in danger of seeing a lot of copycat laws involving different kinds of rights. But I just think if they allow this to stand, then it's kind of a brave new world. So that's sort of observation one. And observation two isn't really a prediction, but I just like, I do think it's kind of a brave new world. So that's sort of observation one. And observation two isn't really a prediction, but I just like, I do think it's worth noting that, you know, there's a longstanding debate, seems very active and pressing right now about whether and how public pressure affects the Supreme Court. And I do think the court's decision to take these cases

and set them for argument as quickly as they did, you know, like bump some cases and rearrange the calendar and do all the things they had to do to get these cases teed up to here on November 1st, is a pretty strong indication that the court is paying attention to sort of public reaction to its work. And this tees up for me, this perennially important and annoying issue, which is whose voices we take seriously. You know, the people raising criticisms were the ones that might have influenced the court, yet it will be the people who said or will say, calm down, ladies, it's all good, who will be given credit if and when the Supreme Court allows the United States lawsuit to proceed. So just rethink some things, people. It's also important not to lose sight of what Justice Sotomayor said in her solo dissent from the court's decision not to vacate the Fifth Circuit stay. She mentioned that the harms from this law will never be reversed if or when SCOTUS ultimately allows a court to enjoin the law

or even to strike it down. And this has been now almost two months by the time this case is heard that people in Texas have been without the same constitutional rights that are enjoyed by the rest of the country. Yeah. There is one other small thing to flag on that stay, which is that the court actually didn't deny the United States request to vacate the stay. It deferred it pending oral argument. And that may be a formulation that is like more routine than I remember.

But it struck me as, you know, the court defers these jurisdictional or threshold questions and wraps them up with the merits. But for some reason, I think it doesn't necessarily always use this language of, you know, pending oral arguments. So that may not be meaningful. But in theory, it seems to me possible that the court could rule on the request to vacate the stay before it necessarily decides the case. I don't know, maybe it's reading too much into it. But I did want to flag that seems like at least a possibility. The next case we're going to talk about is NYSERPA versus Bruin. And for this part of the episode, we are joined by Joseph Blocher, a professor at Duke Law School and an incredible scholar of the Second Amendment. Joseph, welcome to the podcast and thank you so much for coming on. Thank you so much for having

me. Let's give a bit of background here before we start peppering you with questions, Joseph. This case is a challenge to New York's 108-year-old handgun licensing law that resembles the laws in a number of other states and cities. So anyone who wants a license to carry a concealed handgun outside of the home must show proper cause, which New York courts have interpreted to mean some special need above and beyond the needs of the general public. So here, the plaintiff's received restricted licenses to carry outside for target shooting and hunting, and one plaintiff can also carry his handgun to and from work. All right, so Melissa walked through the background of this case. So Joseph, let's bring you in here just to give sort of some of the constitutional background. In 2008,

District of Columbia v. Heller, the court announces an individual right to own a gun for self-defense. Then in 2010, applies that right to the states in McDonald. And it's basically done nothing since. So the court has never said anything about how the right announced in Heller applies, if it applies at all, outside the home. And it really hasn't said much about how gun laws in general get scrutinized. So, you know, we're still really early in the development of Second Amendment doctrine. So can you give us a general sense, Joseph, of what lower courts have done and how the parties are arguing the court here should sort of evaluate this law? Like what should the legal standard and legal test look like?

Sure, absolutely. I mean, since Heller, there's been about 1,500 cases decided in state and lower courts. So we've got actually a lot of law to summarize here, but I think usefully at least the federal courts of appeal have unanimously endorsed a single test, a single framework at least, often called the two-part framework or the two-part test. The first part of that framework is a sort of a threshold inquiry into whether the Second Amendment is in play at all, like whether the challenged gun regulation actually reaches people or arms or activities that are covered by the Second Amendment, because some things aren't. Heller tells us as much, that people who've been convicted of felonies, people who've been adjudicated mentally ill, dangerous and unusual weapons, they just fall outside the Second Amendment, kind of maybe in the same way that libel or securities fraud, although they involve

words, fall outside the First Amendment, right? So that's step one of the two-part framework. Hundreds of those cases, probably at least a quarter or a half, are resolved at step one. For those cases that get past step one, to the second part of the framework, courts apply kind of a sliding scale scrutiny with the scrutiny getting higher the more that the law reaches what Heller called the core interest of self-defense, especially in the home. So most laws end up being subject to something like intermediate scrutiny and the vast majority of them have been upheld. But that's sort of the state of play so far. Now, there is a rising tide among some conservative judges and sort of, I guess, the

one who put the wave in motion more than any other is then Judge Kavanaugh on the D.C. Circuit who announced a test which has come to be known as the test of text history and tradition, which would evaluate gun laws based solely on those three things or when they run out based on analogies to them. And in my brief in Bruin, filed in support of neither side, I argue against this test. So that's a distinct test from the two-part test that you just walked through, or it's just a slightly different gloss on the sort of second step. You know, you don't, it's not a traditional kind of, you know, heightened scrutiny, whether it's intermediate or strict, but it, you know, it focuses less on kind of balancing government interests versus individual right, and more sort of purely on what historical

regulation has looked like and how similar this regulation is to history. Is that fair? Yeah, the two-part framework definitely encompasses text, history, and tradition. What the test of text, history, and tradition leaves out, which the two-part framework includes, is some consideration of contemporary costs and benefits. So if we get to the second stage of the two-part framework and we're doing some level of scrutiny, well, then you're going to be asking the normal questions about, you know, has the government shown sufficient interest? Is this law sufficiently tailored to meet it? That all just seems to fall away in the test of

text history and tradition, at least as then-Judge Kavanaugh described it. What I think is going to replace it is just a whole bunch of judicial intuitionism about whether a modern AR-15 is relevantly similar to a flintlock musket. And I just think that's just going to be a recipe for complete chaos and confusion and, you know, frankly, judicial discretion of the kind that originalists regularly purport to decry. I just want to highlight the specific analogy that you drew is actually not just a hypothetical. You know, the approach that you said is associated with then Judge, now Justice Kavanaugh from his time on the D.C. Circuit. The tax history tradition approach was used in a case challenging a ban on assault rifles. And he used that approach to say, I would strike down the ban on assault rifles because I don't think it's sufficiently

similar to, you know, the restrictions on flintlock guns. So again, like that is the approach that he has argued for and that some of the plaintiffs in this case are arguing for as well. And you can imagine the same kinds of questions being asked about all kinds of modern gun laws, like the federal rule that prohibits you taking a loaded gun into the cabin of an aircraft, right? What would James Madison have thought about that? Like, nothing coherent. It just makes no sense. Or what about ghost guns?

Or background checks, even, right? Or background checks, for that matter. Or, I mean, to take another one, which I think is like a really, really important and sometimes underappreciated federal law, the Lautenberg Amendment, which prohibits possession by those convicted of crimes of domestic violence, right? Like, what does that, how does that law look from the perspective of the late 1700s? Domestic violence wasn't a crime then. QED, suck it, libs. All the domestic abusers can own handguns. Solves it.

QED, I mean, it's a short opinion. It writes itself, right? And it can't be right. Like, judges won't, I think, won't go that far, at least on all those laws. They're not going to start letting guns onto airplanes anyway. I worry more about the DV law, frankly. But it's just going to be a recipe for all kinds of neither here nor there judicial intuitionism, as I see it. So can I ask a question? We recently did an episode that featured Carol Anderson, who is a professor at Emory, who's written a book called The Second, Race and Guns in a Fatally Unequal America. And her argument essentially is something of an originalist argument.

Like if we're really going to go back to the founding moment of the Second Amendment. is not about empowering state militias against a centralized government, but rather about empowering state militias as a means of putting down slave rebellions. And given this court's strong interest in remedying past racial injustices, doesn't that suggest that there is a kind of interesting racial justice aspect of the Second Amendment that history, text, and tradition might want to surface and vindicate here? Absolutely. And I worry, frankly, that the briefing thus far, and I don't want to fault, you know, the authors of briefs who are advocates, of course, for not approaching things in the nuance I'd want to see from a scholar. But what Carol Anderson's work shows and what others like

Carl Bogus and other historians have shown is that at least some of the framers supported the ratification of the Second Amendment precisely because it would protect these armed militias, which were doubling as slave patrols. That's, I think, undeniable that that was at least one reason for supporting the ratification of the Second Amendment. Now, there are those who say that's not all there was to it, and there's lots more to the story. And as with any other, you know, issue of race in history, it's just nuanced and complicated. This is what I worry about with the briefing.

I mean, there are briefs, about a quarter of the briefs in this case are making arguments that are explicitly about racial justice. Because they know this is a woke court. They know this court is super woke. Woke Lido. Woke Lido has been inviting those briefs. I'm genuinely interested to see Justice Thomas' first question at this oral argument. Because it's going to be, I think I can almost script it.

And I think it's going to be exactly on this theme. And it's going to be invoking maybe the public defender's brief, which has gotten a lot of attention. It's not alone, though. Can we talk about the briefs a little bit? Sure. There are a number of briefs, and they don't necessarily shake out in the way that you might expect them to. So you have a brief from the Brooklyn Defender Service and the Bronx Defenders and black legal aid lawyers more generally that support the challengers. And the argument is that the

imposition of these gun control laws redounds to the detriment of gun owners of color, who are often the ones who are selectively targeted for enforcement. And there are lots of actual vignettes of individual African-American, Latino gun owners in the brief who have been charged with possession issues in other states, even though they are lawfully in possession of a gun somewhere else. So that's one brief, and it's sort of a surprising one. There is another brief from J. Michael Ludig, Peter Keisler, Carter Phillips, and Stuart Gerson. I don't know if they're all necessarily sort of staunch conservatives, but I think we definitely know that J. Michael Ludig is a staunch conservative. He is a former Court of Appeals judge on the Fourth

Circuit. He also served as a general counsel for Boeing. After leaving the bench, he was seriously considered for the seat that went to our fan, Samuel Alito. I don't know if we would have had nearly as much fun if J. Michael Ludig had gotten it. But in any event, he is something of a household name, not the least of which because he was in the position of advising Vice President Pence about the prospect of the vice president throwing out the electors on January 6th. And he wrote a very consequential Twitter thread about it. along with these co-authors, has written a brief that comes down in favor of the state and argues that the history, text, and tradition of our country is one that permits states and municipalities to impose reasonable gun control restrictions on carrying guns in public. And then finally, there is an NAACP Legal Defense Fund brief that also supports the state and makes a number of racially tinged and

racial justice arguments, but are on the completely different side of what we saw in the public defender's brief. So how is the court going to suss through these? Because I think there's a lot of information here from parties that they would be inclined to look at favorably. So let me start maybe by trying to summarize how I see some of the themes from the Public Defender's Brief and the NAACP Brief interacting. Because if you read them side by side, I think there actually is a pretty complete and nuanced story about the relationship between guns and race, both historically and today. So the Public Defender's Brief on its own, I think, may overstate the degree to which gun laws, modern gun laws are rooted in racism and may understate the

degree to which gun laws are often rooted in anti-racism. So it's certainly true that gun laws historically, as Carol Anderson shows ably in her book, have been used to disarm in particular black Americans, but also Native Americans and other groups. But it's also true that, for example, during Reconstruction, it was a rare point of bipartisan agreement among Republicans and Democrats in certain states, including Texas, that gun laws should be used to protect exactly those groups from armed violence by white supremacist groups. So there's an anti-racist history there that matters too. That's the Clarence Thomas narrative. Well, it is, but leaving out the part of gun regulations being used to protect those groups, right? It's the understating the anti-racist history

that sort of concerns me because both of those threads are there. I don't know if I was gonna say those threads point in different directions. I guess threads don't point, they pull, whatever, go in different directions. But the other thing I think that really matters and the public defender's brief so powerfully shows

is what matters to me more, which is the contemporary realities here. I mean, they're absolutely right that the burdens of the enforcement of gun laws, New York's federal law, whatever you want to talk about, are falling on black and brown communities wildly disproportionately. I mean, there's just no denying that. It's true of all criminal laws that I can, almost all criminal laws that I can think of. But the NAACP brief is right to point out too that the costs of deregulation are going to fall on those communities as well. I mean, black Americans are 10 times more

likely to die of gun violence than white Americans. This is literally the leading cause of death for young black men. By the way, young black men and teenagers make up about 37% of the nation's gun homicides, despite comprising about 2% of the nation's population. It's just wildly out of sync. And so I hope that the court ends up resolving that by leaving space for democratic politics to work out solutions, whether that means, you know, prosecute less the felon prohibitor, right? The federal law that criminalizes possession by people convicted of felonies, which has enormously disproportionate impacts on black and brown communities. Maybe you don't need to do that. Maybe you could focus on community violence and intervention and

other things, non-carceral strategies, I guess. That would be one way to sort of resolve that. The other thing I would say about the public defender's brief, which again, I have a lot of sympathy for, and the stories they tell, which I think are really powerful, is that we have a doctrinal home for those kinds of arguments. That is that the state is acting in ways, or this law is inflected with forms of racial discrimination, and that's the Equal Protection Clause. And there is no equal protection argument in this case, I think, because presumably they figured they can't make one. If there's that evidence, then I'd be fully in favor of that kind of challenge. Because the court has basically made it impossible to prove racial discrimination. This is the irony.

And to invalidate laws because of their effects on race discrimination. Yeah. So part of what is so frustrating and dispiriting and bleak about this case for me is the problem that the public defender's brief correctly identifies with the enforcement of the laws. The court has basically removed that option from the table for using that as a basis to challenge this restriction or any of the other myriad restrictions, criminal restrictions that disproportionately fall on communities of color. And instead, the choice seems to be you either say you can't have these kinds of criminal laws or regulations that could, right, in some

alternative form be used to actually improve public safety. Or, right, you only, it's just, it's so frustrating and sad that these are the options on the table. And it really is the question, Melissa, that, you know, Carol Anderson put, which is, what are you going to do given the background reality of anti-blackness, right? Like, do you just say you can't regulate guns, which is going to create public safety risks? Or are you going to use this like extremely imperfect and potentially dangerous doctrinal apparatus to address this problem that it was never designed to do? What you just said there, Leah, I think it's just so worth emphasizing. Like, what we're seeing here kind of is like an effort to like give the Second Amendment an exemption from the kind of arlington heights kind of framework you would normally see for an equal protection challenge

it's like well that those roads were closed by self-proclaimed constitutional conservatives years ago and it it would be it would be i think distasteful at the least to open it up just for this issue like to get woke about gun rights alone to open up these equal protection concerns for gun rights alone and you know you may conservatives may just have to choose between these principles. You know, that would be interesting. That goes, by the way, too, to the Ludig brief, which Melissa mentioned. I mean, one of the things that's just so notable about that brief, which I think is quite powerful, is that, and I don't mean in this way to denigrate, again, I think it's a wonderful brief, but it's kind of the CliffsNotes version of Judge Bybee's opinion for the Anbonk Knight Circuit in Young v. Hawaii

just a few months ago, which is an exhaustive and lengthy retelling of the history of gun regulation going back at least until the Statute of Northampton in 1328. And you can't come away with it and not be just, I think, impressed by just how deep and rich and broad that history is, which puts a different choice on the table for, I think, judicial conservatives. You may have to choose here between originalism of a certain kind and expansion of gun rights because as it happens, the history is – I mean especially in the years since Heller has decided, it has become clear that the history here is incredibly rich, the history of regulation. Right. And it does seem not at all irrelevant, the identities of, you know, Judge Bybee, obviously known conservative on the Ninth Circuit, and Judge Luddig. I mean, I think that Luddig's co-signatories on the brief all served in Republican administrations. I don't think they're by any means all staunch conservatives the way Luddig is. You know, it just reminded me of this, like, really dispiriting conversation I had with a Supreme Court litigator, like, months ago, not actually even about this

case. And I asked whether he thought a particular amicus brief would make a difference. And again, not about this case. And he was like, well, it depends on who signs it. And they sort of paused and said, and maybe what it says. But like, there's a real kernel of insight there, which is the justices care a lot about, like, what the friends on their side of the aisle are saying about these hard questions. And I do think the fact that there is this, you know, kind of amplifying chorus that started, like, right after Heller. I mean, Wilkinson, obviously, also Fourth Circuit judge, was extremely critical of Scalia's history and Heller right after the opinion came down. And so it's not as though this recent course is a new one, but it's certainly getting louder. And I think that that actually feels like

it could make a difference in the way the justices take a look at the history. And I think as Joseph just said, like the history of regulation is really hard to deny. That is absolutely right. And yet, of course, there are ways to cut and trim and we'll certainly see there's a lot of sort of frame shifting happening in this case, as you know, is common in litigation.

But, you know, there that Paul Clement will say for the challengers, as he has throughout the briefing, is like, this is just about the right to bear. You know, Heller gave us the right to keep, but the right says keep and bear. And if bear means anything, it's got to be a right to that extends outside the home. And that's really all we're saying. And New York will say, hopefully, in response, that's not all you're asking for. We allow carry outside the home. You're asking a right to carry outside the home without proper cause. We, like every state, allow some form of public carry. That's actually a question I wanted to put to you, Joseph, which is I have to say it's not actually that clear to me what it is these plaintiffs who are represented by Paul Clement are asking for specifically, right?

Like they are arguing the New York law is unconstitutional. But what do they think states can do, if anything, to regulate the carrying of guns outside of the home? So, you know, I think we are all pretty clear that the court is going to say, yes, Heller extends outside the home. But obviously it matters a great deal how they say it and what they say states can do. They may, you know, just again punt and let the lower courts work it out for a while, but say the New York law falls, whatever the standard is and whatever the test should look like. But are they actually seeking a ruling that the Second Amendment requires states to give literally every person, maybe like subject to a few of the exceptions set out in Heller, who wants permission to carry a gun, the ability to do that? Like what are they asking for? It's a fascinating question.

And I have to admit, like, you know, going back and rereading the briefing, I'm sometimes not sure myself. I mean, to say that would fly in the face of Heller. I think it would be a, I think that might even be a loser. I mean, I don't think that even the court's most staunch gun rights conservatives are willing to embrace the way it's described in the brief sometime, which is a right to care, keep and bear an arm for the purposes of self-defense, which can arise whenever and wherever a person happens to be like that can't be right. I mean, Heller specifically says the right doesn't extend into sensitive places like schools and government buildings. And if that argument's made, I would hope that Barbara

Underwood for the state would immediately say in this building, like really whenever, wherever, like that can't come on, like that can't be right. Isn't this kind of a long game approach? I mean, this strikes me as being not unlike the campaign to piecemeal dismantle Roe, right? I mean, it may not be the case that it's on the wall now to get rid of any kind of meaningful restriction for holding a gun in public, but just chip away, chip away, chip away. And suddenly, and like we're 10 years later, what was off the wall now seems on the wall and perfectly plausible and reasonable because we've normalized it to such an extent. I think that's absolutely right. I mean, I think, you know, Reva Siegel's really powerful piece in the Harvard Law Review right after Heller came down tells the story basically of how Heller

shows that, that when it came down, 75% of Americans said they agreed with the basic holding. But it was a remarkable change in the meaning of the Second Amendment. You know, Kate was there for ground zero on that. A most competent clerk. No, no, no, no, not most. No, no, no, no, no. Don't give me promotion. Especially competent. Especially competent. I'm not totally sure what kind of compliment it was. But yes, I was there. I clerked that term and Joseph was one of the lawyers who represented D.C. So we earned our stripes on the Second Amendment.

Can't seem to quit it. But to your point, Melissa, I mean I think one of the things that's really extraordinary about this case is exactly the way it interacts with what we're seeing. If you sort of like open the sort of frame a little bit about like what's happening with gun rights and regulation outside of the second amendment i mean where we started which is exactly right is the court has basically been on the supreme court has basically been on the sidelines there's been a lot of litigation but not a lot of gun laws have been struck down one of the reasons for that is that we have so as a country overall in most places so thoroughly deregulated guns over the last 20 or 30 years. Like this is a case about how the right extends outside the home. Well, if you look back to 1987, there was

only one state, Vermont, which had permitless carry. Now there's 21, right? That's not because of constitutional holdings of courts. That's just because of, you know, states adopting what some of them call, by the way, constitutional carry, but has nothing to do with, you know, second amendment holdings. You know, likewise, these, these may issue laws like New York's, which today exist, depending on how you count, in six to eight states. They were on the books in 26 states in 1987, like the majority of states covering the vast majority of the population. So it's almost like a sort of constitutional calcification of this rapid statutory deregulation that I think is being pushed. And Melissa, I think you're right to say it is an incremental strategy, but we're way into it. It's happening already.

You note that the court has mostly been on the sidelines for this, and that is not necessarily by choice for at least some of the members. So there have been a number of cert petitions, and in 2020, I think there were 10 pending at one time, and the court did not grant cert on them. And that prompted a very vehement and spirited dissent from Clarence Thomas, who has bemoaned the idea that the Second Amendment has basically become what he calls a second-class constitutional right. So the court has been sidelined, but not necessarily by choice. And there certainly have been some justices who have been chomping at the bit to get something like this. And, you know, I think the real question is, you have a table, do you have a party of five? That second class right line that you mentioned, Melissa, is another thing,

I think, to look for at oral argument. I mean, this has become the dominant rhetorical move of gun rights advocates, really, in the last few years. I can tell you a better second class constitutional, right? It's amazing. This is the only one. I can tell you a better second-class constitutional right. It's amazing. This is the only one. I mean, to go back to Justice Alito, I mean, his remarkable speech with the Federalist Society, like, calling out this as, I think he said,

the ultimate second-class right in the eyes of some, as if, like, this is truly the right. The gun owners and gun rights are the ones who are the most persecuted groups in the United States, which, again, I mean, you see in not just in public letters to the editor. I mean, in scholarship, references comparing the lower court's response to Heller in terms of massive resistance, like literally using that phrase as if what we're seeing here is relevantly similar to the South's response to Brown versus Board of Education, like implicitly comparing gun owners today to black school children in the South in the late 1950s. Like that's the mindset. And Justice Thomas himself has described the Second Amendment as a constitutional orphan, has used this sort of second class rights framework. Eric Rubin of SMU and I have a

piece coming out in the Georgetown Law Review tracking this sort of phrase, the use of the second class rights phrase, because it really begins with Justice Alito's opinion in McDonald. It's the first time you really see it showing up. But the remarkable uptick in briefs and in judicial opinion since then, I think, signals where at least some justices and judges and certainly a lot of advocates see themselves. We'll keep an eye out for that kind of rhetoric at the oral argument. I have one final question, which is, is the 1328 statute of Northampton going to be important in the oral argument or dispositive in the oral argument? That's fantastic. I want to say in response, it depends which of the two versions of the reported case Rex v. Knight. Did the Knights bench get the statute wrong, right? I mean, this is absurd that this is the ground on which this case is going to be fought,

but it seems like it is. I think that's right. I mean, the statute of Northampton, this is a statute from 1328 under the reign of Edward III, which, among other things, prohibited the carrying of weapons in fairs and markets to the terror of the people. Blackstone referred to it. It was widely, forms of it were widely adopted in the colonies. And in fact, one almost word for word version, taking out the reference to the king, still exists in states,

including where I am here in North Carolina. The focus given to the Statute of Northampton, I think just baffles people who are not in this debate. It baffles British historians whenever I bring this up with them. Like, what do you guys think about the Statute of Northampton and how it applies to modern regulation of guns in the United States?

And like, what are you talking about? That's the correct reaction. Why would it? That makes no sense at all. But I guarantee that it will be a big part. So I guess I'm almost leaning towards a dispositive there, Kate. I want to take the high bid, but it's certainly going to be a big part of the briefing, and I'd be surprised if it doesn't come up at oral argument.

It's really a condemnation of the whole enterprise. Well, let's drink every time we hear it. Let's drink every time we hear it. Let's drink every time we hear it. It's early in the day, the argument, if you're listening live, but, you know. Whatever would be appropriate for medieval England. Pour yourself a big tankard of, you know, mead.

Exactly. Awesome. All right, Joseph, thank you so much. That was so illuminating. Really great to have you on the podcast. Thank you guys so much for having me. So the last case we wanted to flag is something of a sleeper case, which is Houston Community College versus Wilson.

And this case is about whether the First Amendment restricts the authority of an elected body to censure a member for their speech. The case involves the Board of Trustees for the Houston Community College system. The trustees serve for six years without compensation. And Wilson was elected to the board. While in office, he filed lawsuits against the Houston community college system. He's accused of leaking confidential information. He attacks the community college system's anti-discrimination policy and other things as well. The board votes 6-1 to reprimand him for violating board rules and imposing significant legal

costs on the board. Wilson responds that the reprimand is never going to stop him. He orchestrates some negative robocalls targeting other members' constituents and gives an interview criticizing other board members. He hires agents to investigate a fellow board member and the Houston Community College system and maintained a private website using the community college system's name. He also files a fourth lawsuit against the Houston Community College after a board member voted by videoconference. The board formally censured Wilson, which made him ineligible for election to the board officers and ineligible for reimbursement for college-related travel. It also required board approval to access funds in his community affairs account. It recommended that he complete training and warned that repeating his behavior might constitute grounds for further disciplinary action.

He alleges that the censure amounts to prohibited First Amendment retaliation and the Fifth Circuit, despite finding for the college on a number of points, held that he could proceed with this novel First Amendment retaliation claim. He tries to distinguish the censure here from a normal censure, saying that this involved additional penalties. Okay, so some questions this case raises. Does impeachment violate the First Amendment, which of course, impeachment is the ultimate in cancel culture? Kate, I feel like you have several articles which speak to these questions. Yeah, I mean, definitely Wilson's entire case is incredibly similar to Trump's First Amendment defense to the second impeachment trial. You know, he's like, look, the thing you're going after is my speech and the First Amendment protects me against the sanction that you're pursuing.

And I think it was a terrible argument when Trump made it in his impeachment defense. And I think it's a terrible argument here. Right. The fact that something is speech does not insulate it from all accountability, right? Whether we're talking about the constitutional remedy of impeachment, or as here, the familiar remedy, you know, long available to legislatures and legislative bodies like this one of censure, right? So this conduct was outrageous. The First Amendment clearly to me does not disable the board from responding, doesn't insulate him from all accountability.

And the board's response clearly took the form of censure, which itself is a form of constitutionally protected counter speech. So for the court to find that the First Amendment disables the board from engaging in its own First Amendment activity to protect the First Amendment interests of Wilson seems to me like just a banana's argument. And yet, again, at least on this one small aspect of his claim, the Fifth Circuit allowed him to go forward. One thing to flag is that, I don't know if you guys noticed, but the ACLU, interestingly, along with Alan Grew of Heller fame, he brought and argued Heller in the Supreme Court, filed a brief in support of Wilson. So there's not a huge amount of amicus activity in this case,

but there are some briefs in support of the college. And, you know, the United States has filed a brief in support of the college underscoring the kind of importance of the central remedy. And the only brief in support of Wilson, I think, is this ACLU Alan Gurr brief. And I couldn't help wondering whether this brief was meant to kind of like troll that New York Times article from last summer that we talked about on the podcast, which is about how the ACLU, once a bastion of free speech, has lost its way and is having an identity crisis. Is the ACLU being like, oh no, we'll defend any speech? That's a vibe. Well, I mean, if justices hit the huskings to disclaim their partisan inclinations, why not? Who knows?

I will note that when that article came out, the ACLU was very quick to note that they had a bunch of free speech cases that were being litigated at the time. So not clear that they would have to prove their free speech bona fides by intervening in this particular case, but there we are. They're doubling down. Anyway, it's a fascinating case. There's lots more to say about it, but because we are really short on time, let's leave it there and then maybe we'll do a little bit more when it comes to debriefing the first week of the sitting. Yes. Since we are inevitably going to have a separate episode on SB8, Squid Game, and then a separate episode on the rest of the arguments. So that's probably all we have time for today. Stay tuned

for forthcoming episodes recapping these cases and covering the other arguments on the courts November sitting. Those arguments include United States versus Vallejo Madero about the exclusion of Puerto Rico from the Social Security Act. Ramirez versus Collier about whether a state can deny someone the ability to pray with and be touched by their religious advisor while in the execution chamber. And FBI versus Fisaga about whether the statutory scheme established by the Foreign Intelligence Surveillance Act, and specifically FISA's review of classified material regarding electronic surveillance, displaces the state secrets privilege in that context. That case stems from an FBI operation from 2006 and 2007, in which agents sent a paid informant to mosques in Orange County,

California, and had the informant pose as a convert to Islam. The informant then gathered information on hundreds of Muslim Americans, and community members actually reported the informant to the FBI because he was acting so strangely. That case will be argued by Ahilan Arulatham, professor from practice and co-director of Center for Immigration Law and Policy at UCLA and former senior counsel at ACLU Southern California. Yeah. Speaking of the oral argument calendar, there are 27 slots on the calendar, 25 lawyers arguing because Judd Stone, representing the state of Texas, needed to argue three times for Texas, including in both of the cases involving SB8. Interesting. Of those 27 slots with 25 lawyers, five of the lawyers arguing are women. So thanks to our producer, Melody Rowell. Thanks to Eddie Cooper for making our music. Thanks to Sam Alito for providing us with endless fodder. And thanks to all of you for supporting the show. If you'd like to support the show, you can become a GLOW supporter at glow.fm forward slash strict scrutiny.