Strict Scrutiny - The Aesthetic Enjoyment of Other People’s Uteruses

Episode Date: August 21, 2023

Easha Anand of Stanford's Supreme Court Litigation Clinic joins Kate, Melissa, and Leah to lay out what SCOTUS has been up to in the world of criminal law. But first, Kate and Leah analyze the Fifth Circuit's opinion in the mifepristone case, and what it means for people seeking abortions across the country.Listen to "What's next in a post-Roe world," our episode with Diana Greene Foster, author of The Turnaway StudyGet more background on the mifepristone case in our episodes from earlier this year: "Mifepristone, Mega Yachts, and Maskgate," and "What's next for mifepristone?"Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events. 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. Hello listeners, we have an awesome episode for you recapping the big criminal law cases from the past term. But the Fifth Circuit threw a little bit of a wrench in that. Yes, that was an intentional pun. So I'm Leah Littman. And I'm Kate Shaw. And we are going to bring you that criminal law recap episode, which features a fantastic guest later in the hour. But before we do that, we want to bring you an update on a couple of other

important developments, one of which Leah just alluded to. And that's the one that involves the medication abortion case, the case brought by a group of anti-abortion doctors who are asking the courts to issue a nationwide ban on mifepristone, the drug used in medication abortion, or in the alternative, the doctors are asking the courts to impose a bunch of restrictions on mifepristone, the drug used in medication abortion, or in the alternative, the doctors are asking the courts to impose a bunch of restrictions on mifepristone, even though the FDA, which is the expert agency on these matters, deemed those restrictions medically unnecessary. So let's dive right in. Most of our listeners will recall the basic history of the case, so we are just going to briefly recap it. Judge Matthew Kazmirik, the shadow author of law review articles, the man who dressed

his children up in t-shirts that read, I survived Roe versus Wade, the man who has criticized no-fault divorce rules. I think that was in an interview he didn't disclose to the Senate Judiciary Committee. Anyways, that guy, he issued a decision this winter that purported to revoke the FDA's approval of mifepristone, one of the two drugs in the medication abortion protocol. Medication abortion is the most common method of abortion in the United States. And by revoking the FDA's approval of the drug, that would have rendered mifepristone an unauthorized drug, which makes it illegal to prescribe and distribute anywhere in the United States. So the Biden administration appealed that order because, of course, they did, because they had to, because it had no basis in law, and it also would have had truly catastrophic

consequences. Can I interrupt you, Kate? Do you want to just apologize to Judge Kaczmarek for what you just said? I'd like to stand by, actually, the way I just characterized it. Perfect. But as listeners, you'll hear later in the episode that Leah was just channeling the Fifth Circuit in basically pressing one of the lawyers, you know, defending Mipha Pristone to apologize for criticizing Kazmiric.

Anyway, we'll get there. The Fifth Circuit is the place that an appeal goes if you are appealing a decision of a district court in Amarillo, Texas. And the Fifth Circuit is not a place you ever want to be. And yet, that's of course where the Biden administration had to go when appealing that earlier order. So at that earlier stage, the Fifth Circuit, the Court of Appeals, reviewed the district court order, which I'm going to stand by my description of as crazy. And while they said it was a close question, they decided actually not to go whole hog, that is for the judicially ordered nationwide medication abortion ban, which the lower court judge had wanted.

The Fifth Circuit instead decided to basically judicially order the FDA to reimpose a bunch of restrictions on Mifepristone that the FDA had deemed medically unnecessary. These restrictions included ones the Biden administration had lifted during the COVID pandemic. And kind of the full slew of restrictions that the Fifth Circuit would have reimposed were, one, making mifepristone approved only up to seven weeks since the last menstrual period rather than 10 weeks, making the drug approved only at a higher dosage, limiting who can prescribe mifepristone to only doctors, which the FDA had rolled back, requiring an in-person pickup of the drug, requiring in-person administration of the drug. Again, these are restrictions that had been in effect at earlier stages, but that the FDA had lifted at a few different points and that these judges in their infinite wisdom would have just put back

into place. And this ruling still could have been and would have been catastrophic because it's not just as simple as just reimposing or bringing back the status quo as it existed in 2016 before these restrictions were lifted. The drugs that had already been manufactured and distributed would have been mislabeled once this Fifth Circuit ruling went into effect because the drug still would have had the guidance from the old regulation. And while doctors can prescribe off-label drugs, distributors and manufacturers can be subject to liability for distributing them. That's why one of the drug manufacturers told the Supreme Court that this ruling could imperil medication abortion nationwide for months, if not years, while the manufacturers sought a new label and sought FDA approval of it and then created it

and so on. And even if you put that to the side, reimposing all of the restrictions that Kate just lifted would obviously severely hamper access to medication abortion in states that have shut down clinics since people living in those states could not obtain medication abortion through telemedicine. After that earlier Fifth Circuit ruling, the Supreme Court stepped in and stayed the district court's order, so putting it on hold so it wasn't in effect. And this part is important. They put that order on hold until they, meaning the Supreme Court, had the final say. So what that means is the status quo on medication abortion, which is that it is available subject to these less restrictive requirements that the FDA has adopted, all of that, the current status quo stays in effect, does not change, even with the latest insanity from the

Fifth Circuit, which we will get to in a moment, unless and until the Supreme Court allows the Fifth Circuit's ruling to go into effect. So the danger is very real, but right now, the status quo remains in effect. And if you're thinking like, this is strange, the Supreme Court already acted on this case, like what is going on now, just a quick primer. What happened up until now is that the district court had issued that insane ruling, and then the federal government asked for what's called a stay pending appeal, basically to put the district court's ruling on hold then the federal government asked for what's called a stay pending appeal, basically to put the district court's ruling on hold while the appeal of the district court's ruling was ongoing. That's what the Fifth Circuit had previously ruled on. And that's what the Supreme Court had previously ruled on, a stay request pending appeal. But now we're at the

actual appeal stage where the Fifth Circuit looked at it and they were like, you know, Matt Kaczmarek was really onto something after all, so we're going to let like halfsies of his ruling go into effect. So what would happen next is like a petition for certiorari from the appeal, not the stay pending appeal that would be up at the Supreme Court. We recapped the oral argument the Fifth Circuit had held in this appeal in the spring. That was the one where the Fifth Circuit judges asked the lawyer for the drug manufacturer to apologize. Yes, apologize for too strongly criticizing, by which I mean accurately describing Judge Kazmierczak's ruling. So we're just going to replay that audio so you have a glimpse of the preview for the insanity to come. Your filings have been excellent. However, I am concerned about some

rather unusual remarks in the filings. And I'm wondering, these are remarks that I don't normally see, or we don't normally see in a briefing from very esteemed counsel, that talk about the district court. And then there was one other exchange that we wanted to play, this one about essentially pressing a lawyer to recant something she had said during the oral argument. The state panel used false math to claim this certainty, which our brief walks through exactly why that math does not in any way relate to the 2016 or the 2021 changes. You don't mean false, necessarily. You mean was mistaken, don't you?

False in the sense of inaccurate. Yes, that's right. The math was actually correct, as in, if you calculate two to seven percent times the number of women who have taken mifepristone that would give you the number of women who the label suggests have had an incomplete treatment but what is false is to equate incomplete treatment with a trip to the er there is no declarant who says that there is nothing in the record that says that um and so that's where the inaccuracies come in. So from this and other nuggets, it was clear they were going to do something, the Fifth Circuit, that is, bananas. We said at the time the panel desperately wanted to do

something to limit Mifepristone, and they did, which brings us to their ruling in the case. So we will start with the majority opinion and then get to the James Ho concurrent slash dissent. But first, I think it's worth asking, is this an example of lower court defiance of the Supreme Court? The Supreme Court's shadow docket orders, which is all it has done in this case up until now, are not formally precedential. And the Supreme Court has said they are not precedential in the sense that lower courts must follow them. And there, that is the Supreme Court's decisions on the merits, after they hear oral argument and get briefing don't always follow what they do on the shadow docket. Having said that, the shadow docket order is a sign the court took the additional step of saying this stay will be in effect until we, Supreme Court, do anything as if to say, like, we don't really have confidence in those crazies on the Fifth Circuit.

And some lower court judges have argued that courts should take hints and cues, at least when the hints and cues all favored Republicans from the court's shadow docket orders. And sometimes the Supreme Court itself has faulted lower courts for not heeding guidance provided by these unreasoned orders. And I just think, especially in light of our discussion with Ari Berman about Alabama's defiance of the court's decision in Milligan, it seems like we are getting some real, at least lower court in this case, defiance. And that defiance is asymmetrical. People on the left have been encouraging other political actors to potentially not enforce or follow the Supreme Court's orders, but that hasn't happened yet, right? Nothing close

to it has happened yet. It's just like a few individuals calling for it or suggesting it in some cases. And instead, you have more extreme ideologues on the right defying the court, the current court, as well as earlier progressive court precedents. And sometimes the court rewards that. Yeah. And I think that's why it's really important to see what the court does when it actually considers this case on the merits this coming term as it's sure to do. And I mean, I guess I would say I wouldn't characterize what the Fifth Circuit did here as outright defiance. Yeah, no, neither would I. Exactly. Yeah. No, but I think it's right that- It's curious. It's defined curious.

It is very curious. And it is the case that lower courts take their cues from the Supreme Court. And what I do think is pretty evident in this opinion is that the Fifth Circuit is taking its cues, both in tone and bad faith explanation of why these restrictions don't actually harm anyone. They don't harm the federal government. They don't harm manufacturers, people who need abortions. Like, well, it's short term. It's no big deal. No harm, no foul. That was kind of basically the gist of Alito's dissent in which he also said, I'm not saying what I'm saying.

Don't read anything into my writing about my views on the merits. Like, okay, Sam. But yeah, I do think the asymmetry point is really important to underscore. Like, the court's many, many unhinged decisions have been subject to some discussion of defiance by lower courts or other government actors. Like, discussion of, but no actual pushback by any lower courts or any other government actors. But where you have these very rare moments of sanity by this court, so the stay order in this case, or the opinion in Allen versus Milligan, which you mentioned, enforcing, literally just enforcing the Voting Rights Act, those are the rulings of the court that we are seeing subject to vigorous pushback on the right. And it's just like, it is bizarro world. Like it's exactly

backwards, like the things that should be- Well, the only decisions worthy of respect are the ones that give Republicans what they want, right? Like that's what the rule of law means. That's the rule, okay. So that is a kind of important background context, but turning to the majority opinion here. So the opinion just kind of on the defensiveness point from taking cues tonally from Sam Alito,

the opinion begins with something of this like Lady Doth protest too much note, which is the court says after extensive briefing and oral argument, we hold like they're just a little nervous. People might think they're not being super thorough and judicious here. And so that's how they begin. I mean, everyone is going to think that or at least they will like after reading the opinion. So let's start with the court's discussion of standing the idea that plaintiffs in order to sue in federal court are supposed to have to establish some future risk of injury that is supposed to be like a substantial risk of it, or maybe certainly impending anyways. So the majority in this case recounts the plaintiff's theory of standing, which as they

note, rests on several basic premises. One is that Mifepristone causes adverse effects for some number of people who take it. And the other is that these plaintiff doctors will be called on to treat people in ways that harm them if and when people do experience adverse consequences. And the plaintiffs say this has four injuries, two of which the Fifth Circuit lumped together. One is that the plaintiffs would be, quote, required to perform or complete an abortion, or, and this ends up being a big one, quote, participate in the medical treatment that facilitates an abortion, both of which, like, conflicts with their rights of conscience. And the majority lumps this together with a second theory of injury rather than treating them as distinct,

maybe because the second one is so insane. The second theory says treating Mifepristone patients imposes mental and emotional strain on the plaintiffs. And they say this is, quote, due to the unique nature of chemical abortions, which, according to the plaintiff doctors, frequently cause regret or trauma for the patients and by extension, the physicians. We have abortion regret back into the pages of federal court opinions, seemingly under the guise of I have really big feelings about abortion as a theory of standing. And it's not just abortion regret, which we'll get to in a moment, but like vicarious abortion regret, right? So they are now suggesting. So to take maybe a step back, this kind of abortion causes regret, depression, sadness, et cetera line is one that anti-abortion forces have used for many years. This is just the medication abortion version of it.

And there are a couple of studies that get trotted out every time this argument is offered by anti-abortion authors that purport to find this. But literally all reputable studies and all meta analyses of existing studies show that this regret slash trauma theory is bullshit. The Turnaway Study, whose author Diana Green Foster we've had on the show is one of the many refutations of that, especially when you compare outcomes in terms of mental health and encompassing things like regret and trauma for women who obtain wanted abortions versus women who are forced to carry pregnancies to term. There's no comparison. It is much, much worse for mental health to be forced to carry a pregnancy to term than to be able to obtain an abortion that you want. But this is, I think, a new wrinkle to suggest that not only are they offering this notion, trying to revive this discredited notion of abortion regret or trauma, but to say there

is this by proxy abortion regret and trauma that the doctors experience that gives them a concrete stake in the dispute. And they don't really even reach for any actual evidence for this. They just suggest the plaintiff doctor say so, and so it goes. The plaintiffs also say that providing emergency treatment forces doctors to divert time and resources away from their ordinary patients, and that mifepristone involves more risk of complications than the average patient seems obviously false. It is also striking how uninterested this opinion is just generally speaking with the complication rate. I was talking about sort of regret and emotional effects of being forced to carry a term in unwanted pregnancy. for O, pregnancy and childbirth, which, you know, particularly for certain segments of the population, Black women in particular, right, like both pregnancy and childbirth, the rates

of complications and sometimes fatal complications are extraordinarily and indefensibly high. And none of that enters the calculus, right? Nothing is without risk, but the presentation of complication rates of mephipristone in opinion, is just wildly skewed and disingenuous. Right. And also, it's always as compared to what? And yeah. Plus, I go back to the fact that the plaintiffs are emergency room doctors. And so I just don't know what it means to divert time and resources away from ordinary patients when you're in the ER and you treat people with emergencies as they come in, like you're not choosing who to schedule. And you also don't get to refuse treatment to people whose choices led them to the ER. Like that's part of what being an ER doctor is. And so I wanted to dub this the like call the wambulance theory of standing, like the ER doctors, the doctors who signed up to treat people having medical emergencies don't like some emergencies. and so they're harmed by it. It's just like it is inconsistent with their responsibilities, office of these doctors will be called upon to perform an abortion or maybe provide other care, not that clear to someone because of a medication abortion

and complications from the medication abortion. And the things that they try to offer to back this up, like don't really come close to doing that. So they cite the required patient agreement, which discloses that the treatment will not work in about two to seven out of 100 women. But that says nothing about whether some of those two to seven women will require an abortion or emergency room care at all. They cite the Mifeprex prescribing information which says that between 2.9 and 4.6 percent of women visited the emergency room after taking Mifepristone but then list these extremely rare rates of severe conditions like sepsis, which is 0.02% rate, hospitalization related to abortion, which is between 0.04%

and 0.06%, blood transfusion because of heavy bleeding, 0.03% to 0.05%. And critically, none of these say they require surgical abortions. And so the opinion contains this footnote, like, to be clear, we do not understand the medical organizations and doctors standing theory is applying only to women who present to the emergency room with severe complications such as those listed above. Rather, they also contend they are injured by treating women who experience less urgent medical side effects because such treatment forces the doctor to participate in the abortion process. But, like, what does that even mean, participate in the abortion process? It's not clear what facilitation you're doing beyond providing standard ER care, saving someone's life. And again, it's compared to what, right? Like complication rates, particularly for pregnancies in Texas, particularly for Black women's pregnancies in Texas are way higher than this. It's not clear also whether any of the

plaintiff doctors would end up seeing the individuals. And it's not clear whether any of the patients that they would see or any complications that would arise would be attributable to what they are actually challenging and what the Fifth Circuit does here, which is about the relaxed rescinded restrictions on mifepristone, not its overall availability. And you're supposed to have to show that the policy you're challenging, which again, is the relaxed restrictions, that's what causes your injury. They're hostile to Mifepristone entirely. That's why there's this disconnect between some of the

logic and the opinion and what they actually bottom line conclude, which is that some of these limitations are impermissible. But clearly, they don't think Mifepristone should be available at all. They just don't quite think they can, I don't think, with a straight face defend that position in, like, the language of law. So they try this one. And they sort of try to substantiate their standing analysis with declarations from anti-abortion doctors. But, like, two of them are from doctors who say their partners treated people for complications. This is, like, secondhand information, and they don't describe the injuries to the plaintiffs. And the Fifth Circuit also acknowledges in a footnote that one of the individuals who was supposedly treated by these other doctors obtained mifepristone outside of the United

States. So none of the regulations being challenged are relevant at all in that instance. They also have this extremely tortured distinction with the Supreme Court's prior decision in Summers v. Earthland Institute, which we had previously highlighted when discussing that case, that case rejected a theory that an organization had standing just because statistically, it was likely that one of their members would be injured instead, requiring the organization to show that a particular member or members would in fact be injured. And the Fifth Circuit is like, oh, no, that's not what this case was about. Because in that case, the Supreme Court said the individual members didn't have standing. And it's like, no, but that's true here, right? They concluded in that case, the organization couldn't rely on

statistical fact or statistical certainty that some member might be injured. They had to point to individual members. And they concluded the individual members hadn't shown it was sufficiently likely that they themselves would be injured, which is exactly what happened in this case. It's just, again, like, torture logic to get to a result that they so desperately wanted to reach. And another piece of evidence about this is this utter insanity they include toward the end of their discussion on standing, in which they say, we're not really considering this issue of third-party standing and third-party standing concerns, like when a doctor would be asserting an injury on behalf of someone else, i.e. their patients, rather than themselves. But they add, quote, we suspect that the doctors have a relationship with their patients that is

more than adequate to support third-party standing in many respects. Such a relationship with their patients that is more than adequate to support third-party standing in many respects, such a relationship may be closer than those previously recognized by, and then they list the court's cases protecting the right to abortion like June Medical, Whole Woman's Health. And it's like, you literally can't see a difference between doctors challenging patients' access to a medication and treatment than some patients want and doctors ensuring access to medication and treatment that some patients want. The doctors in the cases protecting abortion access were not trying to prevent people from choosing one way of addressing their pregnancies.

Yeah. What I found so chilling about this actually is that later, and I think maybe this is more in the whole concurrence, the unborn patients is a phrase that the majority opinion actually uses. And it's pretty clear to me here in the majority opinion that the third party standing that the court actually has in mind is the unborn patient and the doctor being able to stand in the shoes of and assert the interest of a fetal person you're curious once again it's i mean it's just like impossible to miss here and i that's obviously what this litigation is moving us toward and they're not yet ready to just like say that quiet part loud but i do think that's very clearly what underlies the logic here um but we should move to the merits i don't, can we even call them merits?

I mean, okay, so it seems like the panel identifies two purported faults with the FDA's scientific determinations. One is that the FDA purportedly did not study the cumulative effect of implementing all of these changes together. It studied the amendments individually. And because the FDA failed to seek data on the cumulative effects and failed to explain why it did not do so, its decision to approve these amendments was likely arbitrary and capricious. This is a shout out to anybody who is like not sure if they're going to enroll in administrative law in law school this coming year. Like, yes, do it. This is an ad law case. Like so many of the most important cases the court is considering this upcoming term,

including this one, really are administrative law cases. So it's just important to kind of work your way around it. But in any event, that conclusion seems to directly contradict something the Supreme Court said in a case a few years ago called Prometheus, which is that the APA, the Administrative Procedure Act, imposes no general obligation on agencies to conduct or commission their own empirical or statistical studies. And yet that is basically what the court has bolted. But abortion case, right? But abortion. Yeah, there was like a little footnote in Prometheus. Now I remember it. Yeah, right. Like this is anti-abortion exceptionalism continued, right? And of

course, their reasoning also overlooks the fact that it's just like absurd to require studying all this together when the complication rate baseline is so low, right? You could conclude in the aggregate that it is fine to continue given that. Yeah. All right. So in terms of what else the majority faults the FDA for, it basically says the FDA was at fault for declining to continue to collect data on non-fatal adverse events in light of the major changes to the regulation surrounding mifepristone. So here's what the majority said. When considering the data collection question, FDA reasoned that non-fatal adverse events did not have to be recorded because the risks associated

with mifepristone were well known, but FDA failed to account for the fact that it was about to significantly loosen mifepristone's conditions for use. At no point during the decision did the agency acknowledge that the 2016 amendments might alter the risk profile. But maybe because that's not supported by the evidence because it didn't alter the risk profile. Right. It's just like assumption, assumption, assumption, right? Like they considered it, but the evidence didn't support it, again, given the baseline studies about Mifepristone. And they acknowledge that each of these things like didn't alter the risk profile. It's just insane anyways.

So before we started recording, I asked, we were having a discussion like, do you think the majority tried to make this opinion not crazy in the hope that they could get five votes on the court? I just, I don't, I mean, on standing, I don't think they could make it sound not crazy. I mean, they couldn't, right? There's a limit given the materials that they have to work with. It's truly an insane standing opinion. I think it's right

that cosmetically, superficially, on the merits discussion, they tried to make it sound like a routine administrative law case where an agency just did not actually go through, you know, the requisite process in order to survive arbitrary and capricious review, which again, when you take administrative law, like you will learn a lot about. But like, you know, agencies actually have to consider evidence, consider the key aspects of a problem, like consider different paths they might take and explain why they're doing and not doing particular things. But also, you know, there's a sort of a delicate dance between courts not wanting to totally second guess everything agencies do, but also making sure agencies are actually acting in reasoned ways that give reasons. And so here, I think you're right on the merits. The court has tried to make this sound like a routine administrative law case. It's not, but I do think that they've dressed it up in a way that at a glance could be mistaken for that kind of opinion. And I think that they were helped in their efforts to make this look less crazy by the

separate writing by Judge Ho and also the underlying order that they're reviewing, right? Since technically they don't affirm it in its entirety. It's like, oh, they took this like moderate middle ground opinion. No, no, no, no, no, no. That would be a mistake, but we should proceed to that other opinion. To the opinion that makes this one maybe sound reasonable, which is, of course, the concurrence in part dissent in part written by the man who was sworn in to be a judge at Harlan Crowe's private library. And no, we did not make that up. James Ho. Okay, so Ho on standing. Do you think he tried to make his standing analysis, Leah? No, he is auditioning so hard for that next Supreme Court vacancy

in the next Republican administration. And he knows he has to outdo Judge Thapar, who's going around writing books about Clarence Thomas and giving interviews on Fox News. So Jim Ho is like, watch this, like usher me in. I think he's got the upper hand. Yeah, no, oh, yeah. Oh, yeah. Okay. Should we clue our listeners into some of?

Yeah. So here is Jim Ho's take on standing, quote, unborn babies are a source of profound joy for those who view them. Expected parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients and experience an aesthetic injury when they are aborted. You know, we'll unpack this exactly what it says in a little bit. But like, if we're going with this, I would just know that like reason legal opinions are a source of profound joy for me which means i experience an aesthetic injury and can bring suit whenever jim ho is on a panel looking at pictures i will i will offer mine which is looking at pictures of ho being sworn in in harland crowe's library by justice thomas is a

source of aesthetic injury this means you get to revoke his Article 3 commission. I'm pretty sure. I'm pretty sure. But he substantiates this aesthetic injury claim with additional insanity, noting that it is well established that if a plaintiff has concrete plans to visit an animal's habitat and view that animal, they suffer aesthetic injury. And then he says, I see no basis for allowing Article 3 standing based on aesthetic injury when it comes to animals and plants, but not unborn human life. And it's like, I'm sorry, no basis? Like you see no basis with saying someone is injured because they can't force someone else to continue their pregnancy to term and go through childbirth? Like, would we have an aesthetic injury because there isn't forced

impregnation? He's literally saying a doctor is injured because a pregnant woman doesn't carry a fetus to term. They are injured because of the choice someone else makes about their body and their pregnancy because a pregnant woman's uterus and wombs are apparently there for pro-life people's enjoyment. Back to the animals and plants for a minute, and then I'll respond to what you just said, Leah. You know, it's so trolly to basically suggest that like liberals care about grass more than, you know, unborn human life as he terms it, right? Like, I think that is what he is sort of suggesting here.

But also the failure, right, to suggest that there is an interest on the other side of the balance that a case involving, say, plants just doesn't present. But kind of to your point about pregnant people's uteruses being there for other people's aesthetic enjoyment, like that really does. There's a chilling lack of limiting principle to this logic because I just don't know what the endpoint is. Like it could be deployed, I imagine, to challenge birth control. People not getting pregnant in the first place means that doctors are deprived of the joy of looking at the pictures and, like, working with the fetuses that would result if people were forced to get pregnant and not use birth control. Like, I don't know why doctors can't challenge birth control on that logic.

And maybe more short term, obviously all abortion and not medication abortion has this effect. So states that have chosen through democratic processes to protect access to abortion, there's absolutely no reason why you could not manufacture standing to challenge all laws that permit abortion under this view of the law. This is a standing theory for fetal personhood, right? Like he just put it out there. Yeah, yeah. And he goes sort of full revocation, he would hold the entire 2000 approval of Mifepristone unlawful. So he was not sort of on board with this kind of just patchwork of restrictions, he would have gone back to what Judge Kazmarek said, which is to pull the drug basically off the market entirely.

But he wants you to know he respects those FDA officials so much, he'll second guess them from here to eternity. So he writes, quote, the scientists at the FDA deserve our respect and our gratitude, but not our blind deference that would defy Congress's clear directive that courts conduct independent legal review. It's like, can you feel that respect when he's like punching you in one face, he'll respect you again and like punch you in the other eye. And it's just like, he pre he basically previewed this in the oral argument when he read some criticisms of the FDA to Danko's lawyer and was like, well, it doesn't the fact that other people criticize the FDA mean that I Jim Ho

get to second guess their scientific determinations and revoke them if I disagree. So maybe let's play that quick clip here. I don't understand this theme. The FDA can do no wrong. First of all, you'll agree. That is basically the narrative you all are putting forth. Nobody should ever question the FDA can do no wrong. First of all, you'll agree, that is basically the narrative you all are putting forth. Nobody should ever question the FDA. This is unprecedented. The FDA, just last month, in response to litigation about the drug, a subpart H drug for pregnant women, McKenna, FDA withdrew it. In response to a New York Times headline, FDA rushed a drug for preterm births. Did FDA put speed over science?

Just last year, Senator Murray, chairman of the Senate Help Committee, criticized the FDA for, quote, unacceptable, longstanding food safety failures. FDA is being blamed for the opioid crisis. Your Honor. I made a Journal of Ethics article how FDA failures contributed to the opioid crisis. None of this has anything to do with this case.

What I'm trying to say is why are we – it's a theme that you all are putting forward that is completely unnecessary. We are allowed to look at the FDA just like we're allowed to look at any agency. That's the rule of the courts. Absolutely, Your Honor. I think some of that may have been prompted by the district court itself saying that it was second-guessing FDA. And so to the extent that part of our theme is that a court is not to second-guess FDA, that is established in, I think, every type of agency APA review. Another theory he embraces in this case was the Comstock Act theory that federal law, this Victorian era federal law, actually prohibits the distribution of medication abortion.

That theory would prohibit medication abortion nationwide. The majority doesn't reach that argument. In a footnote, they say they're not addressing it. I worry that they are preserving it for the possibility of a ruling on remand if the court rejects these theories. I mean, they're just trying to run out the clock. More short term, what this means is that the federal government and Danko, the manufacturer that intervened in the case, will definitely file a cert petition. The court will, I think, definitely hear this case next year. I mean, interesting. at least some members of the court think strategically about kind of the political timing of this opinion, or at least the argument in this case and the issuance of the opinion against the backdrop of the 2024 presidential election. So we sort of, we will see how all that timing plays out. But as we said, and I think you said this explicitly in the Dobbs retrospective, Leah, we need to make sure that abortion and the court remain front of mind for

the American public going into an election year. And the fact that Donald Trump's appointees and the GOP in general are trying to make medication abortion unavailable everywhere in the country needs to be a key issue that every candidate is asked about, every debate features, and just voters are very, very aware of as we head into the presidential election cycle. Two more pieces of breaking news that we wanted to highlight before we bring you that criminal law recap. One is a very different piece of breaking news that involves a landmark ruling in a landmark climate suit filed by young people in Montana. It was really a first-of-its-kind lawsuit that was about using the courts and specifically state courts to pursue climate justice. So that's like the broad goal, but the claim itself is pretty concrete. Basically, Montana has a law that blocks the state from even considering greenhouse gas emissions and climate impact when they are deciding whether to permit

large energy projects like involving coal and gas. And these plaintiffs who were between two and 18 years old when the suit was filed are now between five and 22, argue that that statute violates the Montana constitution. In particular, two provisions of it, actually some others too, but critically, Article 2, Section 3, which guarantees as an inalienable right, the right to a clean and healthful environment. And then Article 11, Section 1, which requires the state to maintain and provide a clean and healthful environment in Montana for present and future generations. And there's pretty interesting history here in that Montana is a state that was once basically owned and run by oil and gas companies. But in the 1970s, a new constitution was adopted, and it tried to reduce their power and shift power to the people, including by adding these really prescient provisions to the constitution. Anyway, these plaintiffs won. They had a lengthy trial back in June.

There was testimony by climate experts and these young plaintiffs. And this past week, in a 100-page opinion issued by a Montana state court judge, which I will say is a better read than the similar length opinion out of the Fifth Circuit in the Mifepristone case, so you have to just read one, read this one. She found that the statute prohibiting the consideration of climate impact was unconstitutional under the Montana state constitution. It brought to mind, Leah, remember when we were in Hawaii, there was a similar decision that had just been issued under the Hawaii constitution with a great concurrence by Justice Wilson from that court. Anyway, back to Montana.

The state attorney general has already said they will appeal, but this is a really significant ruling. There are other state constitutions with similar provisions. There are lawsuits like this one in various stages in virtually every state. And as the climate crisis intensifies, this opening of state courts as a new frontier feels potentially very promising to me. And then one additional note, which is that Justice Rebecca Bradley is at it once again. Can't stop, won't stop, that woman. So the Supreme Court of Wisconsin changed over, you know, from having a majority of conservative justices to a majority of progressive justices. And a case has been filed asking, you know, the court to review whether the Wisconsin legislature's maps, which are one of the most gerrymandered maps in the country,

you know, violates that state's constitution. And Rebecca Bradley is not happy about this. So she wrote a dissent from an order that basically allows the party to file more briefs so the court can consider whether to hear the case she says quote the outcome of this original action has been predetermined she goes on a rant against the democrat party of wisconsin and it's just like you know i just wonder like what she's putting on those cheerios because that is a lot of cray it is an an order. Literally, this was just a briefing order. I think what the court basically said was like, you can respond. And this is her dissent from that procedural matter at an early stage. It is really hard to imagine how she's going to like turn that dial up i don't know what did you say she will find a way she will find a

way she might go again like barges off guantanamo bay for her colleagues crazy like there's no way this doesn't escalate i think that's right so in any event right now all we have is a procedural development in that there are more filings in this original action challenging these maps and she is this mad about that i did just want to say like in this passage, she says that like addressing the gerrymander would quote, bestow an electoral advantage for Democrat candidates. So in addition to the whole like using the Democrat name, removing an unfair electoral advantage where people can remain in power despite not receiving a majority of votes is not the same thing as conferring an electoral advantage. And that logic seems to have escaped her, maybe in her fits of rage. She just couldn't see clearly. But we'll see what she has in store for

us as this case proceeds. Today, we are bringing you a special episode focused on criminal law. And because none of us are really criminal law experts, save for Leah's specific and important interest in habeas corpus and federal post-conviction review, and also the insanity that is the Armed Career Criminal Act, we are delighted to be joined by a real expert, one of the best in the business, return guest, Isha Anand. Thank you so much for having me. The three of you inform so much of how I think about the court and its business. And so it is always such an honor to join you on this podcast. It is mutual. So Isha is formerly with the MacArthur Justice Center, their appellate and Supreme Court project, and is now one of the co-directors of the Supreme Court Clinic at Stanford Law School. So it is wonderful to have you back. Isha, because you're really the expert here, and I should note that your expertise

is homegrown at the University of California, Berkeley, where I happened to know you as a student. So it's really exciting to have you here. But again, you are the expert. So we're mostly going to be putting the questions to you, although I'm sure we all have thoughts and we'll chime in as we want to do. But just so our listeners know what to expect, we're going to divide up the discussion with Isha into three areas. Statutory decisions, which are decisions interpreting what federal criminal law prohibits or what it means in certain circumstances. Constitution constitutional decisions, that is what limits on what the state can do in terms of criminal regulation the constitution imposes. And here we'll probably focus on capital cases that were heard on the shadow docket.

And then we'll do a section on remedies where Leah will go all Hermione Granger on us with a raised hand and lots to say alongside Isha. So with all of that in mind, let's get to it. And as Melissa just said, we're going to start with decisions about the scope of federal criminal law. So these are cases where the court is asked to interpret federal law and decide things like what has Congress actually made a crime? Okay, so in this area, Isha, are there any notable trends or patterns or just cases you want to highlight? Right, so this is one area where the news is pretty happy, right? So the overarching theme here is this is a court that whatever its general hostility to criminal defendants is deeply concerned about the overreach of criminal law, particularly federal criminal law.

When you think about kind of the last 10 years, you see this sort of largely unbroken string of winds when it comes to substantive criminal law. When you think about kind of the last 10 years, you see this sort of largely unbroken string of winds when it comes to substantive criminal law. And that string kind of continues this year. So you've talked on this podcast about Dubin versus United States, which is a case that the Stanford Clinic handled, in which David Dubin overbills Medicaid for the cost of a psychological evaluation. So he basically rounds up the amount of time slightly and says that it's a psychiatrist that does it when it's of a psychological evaluation. So he basically rounds up the amount of time slightly and says that it's a psychiatrist that does it when it's actually a psychological associate. He basically gets an extra hundred bucks for doing this.

Government says he not only engaged in healthcare fraud, no one's disputing that, but he also engaged in aggravated identity theft because during the course of the fraud, Mr. Dubin had to use his patient's name, like had to write it down on the reimbursement form. The court rejects this theory. And the thing doing the work seems to be this kind of potential overreach of the statute, right? So the opinion starts by pointing out that on the government's theory, a lawyer who rounds up her hours from 2.9 to 3,

or a waiter who serves flank steak but charges for filet mignon. That's the kind of driving ethos that we see in this case. The same thing with Ciminelli and Percoco, two cases about bribery and corruption among public officials. And again, there's this undertone, and maybe it takes on a different resonance in the wake of recent revelations about how the justices have received money themselves. This undertone of like, if we adopt the government's theory, like where does it stop? So this is a pretty good run for criminal defendants and perhaps an unexpectedly good run. Like to what can we attribute this spate of good fortune for criminal defendants? Is this about shifts in personnel on the court, the introduction of a Katonji Brown Jackson, who previously was a public defender, or maybe it's the confluence of Katonji Brown Jackson,

Sonia Sotomayor, who has been very skeptical of the government's authority in these contexts, and also Neil Gorsuch, who has, as we know, a strong libertarian streak that means he's somewhat skeptical of government regulation of crime? Is it all of these things or any one thing? Or is it nothing to do with the justices themselves? I believe Justice Alito called the streak ornery, not just libertarian, Melissa. Ornery and libertarian. Again, a t-shirt in the making, if only he knew. So I think it's probably a little bit of column A, a little bit of column B. So the streak predates some of the current personnel on the court. There's been, you know, there's this sort of skepticism of these really broad federal statutes has been around for a while. I do think

that the addition of Justice Jackson and Justice Gorsuch has given sort of a new ferocity to the way that the court approaches these statutes. So Justice Gorsuch not only signs on to these opinions, but this term we saw him writing separately in at least two cases saying, not only would I narrow the statute in the way that the court has done, but I also am so deeply skeptical of the statute, I might consider striking it down altogether, right? So he has this very aggressive conception of this notion of void for vagueness. The idea of the law is so unclear, it has to be struck down altogether. And he's got kind of his own gloss on the doctrine. So historically, you've sort of used the doctrine where the statute either fails to give fair notice or is so standardless,

it invites arbitrary enforcement. And Justice Gorsuch seems to be channeling this kind of theme we talked about in the majority, the sort of ordinary case, and say that that's kind of what the Void for Vagueness inquiry gets at, right? He says that in Dubin, he writes and says, the statute should be considered vague because, quote, almost every adult American would be an aggravated identity thief under the government's view. Sort of a new gloss on this kind of fair warning and judicial restraint principle. And a reminder that Justice Gorsuch has this very high threshold for what a criminal law, and especially a federal criminal law,

kind of needs to say or do. So I guess it's not any one person on the court or any one kind of block of justices. These opinions tend to be actually pretty broad tent opinions. But I do think that particularly Justice Gorsuch kind of penning his separate writing saying, we should strike down these statutes altogether, not just come up with this narrowing construction, shifts the kind of Overton window of how the court is thinking about these statutes. The Gorsuch description of vagueness that you read almost sounds like a criminal law analog or take on overbreath doctrine. That is, it's not necessarily about whether the statute is unclear in applications, but whether it potentially applies

to a bunch of things that we're just not so sure it should apply to or get at that. But despite these defense side wins, and I think deserved ones, another part of the trend we're observing is maybe less positive. And this relates to an observation that Justice Sotomayor made during the oral argument in Hansen about the fact that the federal government is pressing all of these broad theories and then kind of abandons them once they get to the Supreme Court and, you know, admits they're kind of indefensible while still asking for a do-over. So why don't we play that clip and then I'd love to hear your thoughts on it. There was an intent requirement asked for here.

You say it was broader than you think it should have been given. But we've had a number of cases this term, Criminale, Percoco, Dubin, now this case, where the government is conceding that the statute read by its plain terms is too broad. And you come back to us and say, read it more narrowly, but you won at a jury trial on a broader charge. If we keep doing as you ask us to, which is to rewriting statutes, are we encouraging the government to continue this practice? She's exactly right, perhaps unsurprisingly, because I almost always think she's exactly right. What you have here is this dynamic where the court is so used to saying, we look at these statutes, they're vastly overbroad, we know they can't possibly mean

what they say, and we just put a narrower gloss on it. And that's so normalized that the court perhaps forgets that for someone who's not a lawyer, it's kind of a counterintuitive approach. And so in Hansen, this is the case, remember, where federal law criminalizes encouraging or inducing an immigrant to come to or remain in the United States when they're not allowed to. The Ninth Circuit struck down the laws unconstitutionally overbroad. This is a doctrine that Leah was just referring to. The idea is it criminalizes all kinds of stuff that's protected by the First Amendment, right?

The granddaughter who begs her grandmother to stay in the United States, knowing that she's not allowed to, seemingly encouraging her. And the way the majority resolves this case is they say, we're going to read the words encourage or induce in the statute to really mean solicit or facilitate, which are much narrower words. And the Jackson and Sotomayor dissent kind of perfectly captures how implausible this narrowing construction is. And I think the takeaway that Justice Sotomayor is getting at in her question is, look, it's good that the Supreme Court is figuring out ways to cabin prosecutors' power to bring these charges, but it shouldn't do that at the expense of just saying, this statute is absurd to begin with. That's a little bit with the Gorsuch concurrences we were just talking about, get it, as well.

Sometimes these statutes just can't be salvaged, and the Supreme Court making up an alternative statute that's narrower in lieu of just striking down some of these statutes, I think is the kind of bad tail to this otherwise sort of shiny penny of narrowing the statute. What it feels like here is the court kind of masquerading as modest, but actually exercising enormous authority to really like rewrite statutes. But it is doing it in the guise of not disturbing Congress's handiwork and trying to save statutes, which in some contexts and in the abstract does seem like something that courts should often try to do, but it obviously has a limiting

principle. So getting your description of what Justice Gorsuch is doing in these cases, kind of looking at the expected applications or potential applications of this law and then stepping back and concluding, well, that just cannot be true. That mode or method of statutory interpretation almost sounds pretty purposivist or at least concerned about the consequences of an interpretation. It doesn't sound like the kind of formal textualism that either Gorsuch professes to adhere to or that we have come to assume that this court does. So is the court doing something different in these federal criminal law cases than it is doing in other statutory interpretations, like, say, Bostock, where it says, well, we just care about the meaning. And yes, this might be an unexpected application, but who cares? Or is that really what they're doing in all cases and only sometimes admitting it? So I think probably the latter. I think that, you know, those of us who have some sort of any sort of judicial realism bone in our body know that this, that it's not really the definition of the word so or the word use that can be driving the train

in all of these cases. But I appreciate in these kind of federal criminal cases, the court lifting the veil a little bit and saying, yes, this turns on what the word use means, but the word use means a lot of different things. And a version of use that makes every single adult American a criminal can't be the right one, right? I wish that they didn't have to start with the, yes, this turns on what the word use means preface, because I think that the latter part does all the work. But I do appreciate the kind of lifting of the veil in this federal criminal context. I just wanted to ask a follow-up question about two of the cases that you mentioned, Simonelli and Percoco. And, you know, you described this as a pretty good run for criminal defendants. And Simonelli and Percoco were cases

that did involve criminal prosecutions of cases involving political corruption under different statutes and different theories. But basically, this is the trading of money for political favors. Prosecutors in the federal system believe that this conduct ran afoul of federal statutes, and the Supreme Court basically unanimously in both cases reverses those convictions. So I guess, in your mind, are these criminal defendant wins that belong in the same column as the other kind of criminal defendant wins? We have taken the position previously when talking about these cases and the cases that they build upon, like McDonnell and Kelly, the Bridgegate case, really concerning in that the court seems to be inching ever closer to basically building a protective bubble around any activity engaged in by elected officials and their, you know,

benefactors in the private sphere in ways that, you know, as you mentioned a couple minutes ago, you know, does like land in a different way in light of recent kind of ethics revelations about the justices and, you know, billionaire benefactors. So are there distinctions between cases like this that raise genuine concerns about the justices, even where they are finding for criminal defendants, and other cases where we can celebrate these criminal defendant wins? Or to your mind, are these also important instances of the for you, Isha, so you can answer yes or no and say more, but it does seem like there's a real difference between Simonelli and Percoco and these cases where the court seems to be making it safe to grift and graft, and cases where they are acknowledging that the Constitution or alternatively statutory law imposes real limits on what the government can do in terms of regulating through the criminal law. So this is not the Dubin,

like small-time criminal defendant. This is basically making it safe for justice-adjacent friends to do corruption. So I think that's all right. And I think that, you know, I think it depends on the lens through which you're looking at this, right? If you're asking what's good for society and democracy, I think you come up with one set of answers. I will say that, you know, this kind of principle that the court frankly kind of pulled out at starting in these kind of public corruption cases, in cases of criminal defendants who looked a lot like them, this principle that the court can't construe a statute on the assumption that the government's going to use it responsibly, that has benefited an enormous number

of criminal defendants who don't look like these defendants. So do I think it's a good thing that the court says we can't trust prosecutors, that that revelation comes to the court in cases of criminal defendants who look a lot like the justices themselves. Like, no, I don't think that's great. But the fact is that that principle has been used by folks in a kind of variety of circumstances to be able to think about how to narrow the scope of criminal statutes. So if you're just looking at sort of the criminal law. Yeah, the downstream effects actually of this skepticism toward these broadly worded criminal statutes actually does redound to the benefit of a much broader class of criminal defendants. So that is an interesting, and yet it is also possible from the perspective of democracy to be really troubled by this seeming, now we're talking about these as statutory cases, and they are, but I always feel like the court is inching ever closer to constitutionalizing protection for political officials.

So maybe these cases will jump into the constitutional column, which we're going to turn to in a minute. So I think that we just kind of have to be able to hold both ideas in our mind. There's something really troubling about these cases on their own, and yet maybe they have yielded other benefits in other spheres. Well, it is that kind of nuanced, subtle answer, Isha, that I think made you number one in your class. And I'm just going to say, well done. Still top of the class. I learned everything I know from Melissa. That's a lie. She never took my class. She said she was too busy. I just want to point out that there is going to be a remarkable contrast in what people are apparently learning at Berkeley Law versus what we've learned that people are learning at Harvard Law in a recent episode. Spoiler alert. Just putting that out

there. So we noted at the outset that we did not have a lot of big headline-grabbing constitutional cases involving criminal law, although Hansen was both a constitutional and a statutory decision, the court ended up interpreting the statute in a way that avoided a decision on the constitutional issue. So, you know, we really didn't grapple with it explicitly. But there were definitely some interesting cases that sort of touched on constitutional issues, including Counterman v. Colorado, where the court established what kinds of true threats the government could prosecute consistent with the First Amendment. And basically, the court concluded that the First Amendment requires that a defendant

have some subjective understanding of the statement's threatening nature, but that a recklessness standard for determining whether that was the case was sufficient. There was also Simea versus United States, the Confrontation Clause case in which the court essentially held that there is a new sheriff in town when it comes to the Confrontation Clause. And that sheriff has let the government- It was Joe Arpaio. It was Sheriff Joe Arpaio. Well, basically, since that sheriff has allowed the government to redact a confession with generic terms like she or the other person in order to get around the Supreme

Court's earlier cases, holding that you can't admit the confession of a co-defendant who doesn't testify against the other defendant, I could go on. But we discussed that case at some length when it came down, and we did want to spend some time discussing the court's capital cases. So on the court's capital cases, although the court finished releasing opinions in argued cases at the end of June, the term actually isn't over because the court has continued to oversee executions happening throughout the country, including in a couple of cases we haven't yet had a chance to discuss on the show, and so I'm glad we have a chance to do that now. And in particular, in one notable case, the case of James Barber, who was executed

by lethal injection in Alabama, the court denied James Barber, who was executed by lethal injection in Alabama, the court denied a stay of execution over dissent by Justice Sotomayor, together with the two other Democratic appointees. Barber had sought a stay in light of his own medical history of medical personnel being unable to access his veins, as well as Alabama's history of botched executions. And as a reminder, in the last year, the state has temporarily called off two executions after struggling to implement its execution protocol, which resulted in horrendous pain for the individuals who lived to describe what had happened to them. The state ended up calling off these executions, nominally conducted a review after the governor paused executions

because it was that bad, but later announced that it had found no deficiencies in its execution protocols. And interestingly, in her remarkable dissent in Barber v. Ivey, Justice Sotomayor, for whom you clerked, Isha, expressed concern about, quote, the court stymieing the development of Eighth Amendment law by pushing forward executions without complete information. She noted that in two cases, the court vacated stays of execution that had been granted because lower courts concluded that Alabama would botch the executions, which it did. But by not allowing the cases to actually proceed, there hasn't been sufficient factual development to uncover what exactly Alabama was doing with these executions.

So again, a sort of shallow, factual foundation on which to base a decision. And as Justice Sotomayor wrote, quote, this court's decision denying Barber's request for a stay allows Alabama to experiment again with a human life. And she dissented because, quote, the court should not allow Alabama to test the efficacy of its internal review by using Barber as its guinea pig. OK, so that was a long lead up, Isha. But I guess, you know, what do you make generally of the court's actions on the capital docket? And what is happening here? Right. So I think the death penalty context is one arena where you're just really, really seeing

the impact of a 6-3 court as opposed to a 5-4 court, right? So remember, it takes four votes to grant cert, four justices can set the agenda for the court. So when I was clerking, and it doesn't actually feel like that long ago, but was a really different era. Justice Kennedy was still in the court. There were sometimes cases where no one could really disagree on the merits, right? It was very clear some sort of error had been made. And the liberal justices could then force the court to consider the case on the merits.

Four votes, right? And even though there were only four votes the court to consider the case on the merits. Four votes, right? And even though there were only four votes at that stage, the case would end up being like 7-2 or 8-1 in the end because the other justices didn't disagree that error had been committed. They just disagreed that it was worth the court's time to make sure that someone who was being executed was being executed after fair process. And, you know, the same dynamic played out even in these expedited cases, because there was this tradition that the chief justice at least sometimes adhered to of the courtesy fifth, where four justices wanted to hear the case, you provide a fifth vote to make sure that the defendant doesn't get executed before you can hear the case. No longer. There are no longer four justices, there are no longer four people on the

United States Supreme Court who think the fact that someone might be executed despite severe constitutional defects in their conviction or sentence, there's no longer four justices who think that is worthy of the Supreme Court's time and attention. And we see this in sort of case after case, right? You read from the dissent in Barber. A few weeks ago, Missouri executed a man who genuinely believed Satan had orchestrated his execution. Three justices dissent. Justice Sotomayor writes, there is no moral victory in executing someone who believes Satan is killing him to bring about the end of the world. He's killed. Back in June, case out of Mississippi, evidence shows the prosecution basically did background checks just

on the prospective Black jurors. Again, three justices dissent. Justice O'Meara says, hey, look, we just decided this Flowers versus Mississippi case, that wild case where the prosecution tries six times to get a conviction and gets one finally by striking all the Black jurors. You just decided this case. Mississippi's already flouting the teachings of that case, and you're really going to let it go? Majority's unmoved, petition denied. Back in April, a case out of Louisiana comes to the court. Turns out prosecution suppressed a statement from one of the co-defendants taking responsibility for the crime. Three justices dissent. Justice Jackson points out Louisiana has a bad habit of ignoring the Supreme Court on this issue.

Doesn't matter. Cert tonight and so on. So just the fact that there are only three justices left who just think the fact that someone is about to be executed is worthy of the court's time and attention. The fact that they don't have a fourth has really made all the difference. And I don't mean to be sanguine about the prior era of capital cases at the Supreme Court. It was not great when I was clerking and you were clerking, Leah. But at the very least, there were four justices who could force the court to pay attention, and that doesn't exist any longer. Yeah. Although, can I ask, do you think if there were, if Roberts, because it would, I think, have to be Roberts, were willing to go along with the liberals, are you convinced that there would

be a courtesy fifth among the more conservative remaining justices on the court? I'm not. I'm not sure they would abide by that practice. You know, I'm not sure they would either. And to be clear, the chief's courtesy fifth, I think, was somewhat ad hoc, even when it existed. But I don't know that any of the other justices have professed any sort of adherence to the courtesy fifth. Justice Breyer and the chief are the two who kind of publicly wrote about that. I don't know who of the rest of the justices believe in that practice, because they've never been put to the test. There's never been four where they've needed the courtesy fifth, right? So forgive the Hermione Granger first interjection. I just wanted to add kind of three things to what you just said,

you said about the Capitol docket. So one is just, you know, on the Louisiana case, specifically, Louisiana, like Mississippi, as you noted in the Batson case involving racial discrimination, Louisiana has a horrible history of flouting the obligation to disclose exculpatory evidence in violation of Brady. several justices spent the argument time asking the lawyer for Louisiana, why do you just refuse to concede? Like, why won't you just admit there's an error? You know, the Connick versus Thompson case about the prosecutor's office failing to disclose exculpatory evidence of an innocent person who came within hours of being executed, like that also involved a kind of pattern of Brady violations in Louisiana. And I worry that like part of what we are seeing on the shadow docket with the court refusing to grant these cases is the court basically allowing lower courts and state courts to evade constitutional

decisions without the Supreme Court actually having to overrule them, whether that is Brady, whether that is Batson, whether that is ineffective assistance cases, whether those are Eighth Amendment cases involving the execution of persons who are not competent to be executed. And so that's one dynamic that I feel like is happening that is a little bit difficult to report on because they don't actually involve cases that the court is hearing. It's instead the decision not to hear them that is changing the direction of the law and its substantive guarantees. And then the other thing that I just wanted to note was the court's practice of basically denying stays and then vacating stays that are issued, I worry, is also emboldening lower courts to kind of do the same, particularly with respect to method of execution claims, which it seems like the court has uniquely soured on and cast dispersions on

as like basically a problem in capital litigation. So like there too, it is not substantive decisions, but just like procedural rulings that the court is using to kind of extinguish like what used to be a substantive right. I think that's exactly right. And I think you see that most acutely in the capital context. But I think it's a dynamic that is happening all over this court's exactly right. And I think you see that most acutely in the capital context, but I think it's a dynamic that is happening all over this court's docket. And as podcast talked about in your episode with Steve Vladek, using these sort of procedural tools to just set an agenda that doesn't include huge, important swaths of cases is a profound power that the court is exercising in a particular way. So now onto the good stuff, remedies. Get excited. So these are, Melissa, turn your camera back on.

Barbies are interested in remedies. Okay, I'm post-conviction Barbie. These are cases where you concededly have a right and your right has been violated. And the question in these cases is, what, if anything, can courts do about it? And there were at least two big cases on the criminal law side this term that teed up that issue. One is Jones v. Hendricks, the habeas case where the court said that legally innocent people can't file a habeas petition. So literally where a court messed up and you were convicted of something that is not a crime or you were sentenced to more time than the law says you can serve, the court said it is illegal for a federal court to do something about this. So this means all those nice federal criminal rulings we described earlier in the episode, they won't actually benefit people who have already been mistakenly convicted or sentenced under them.

Like those people are stuck in prison. And the appeal has a story about how this ruling is already hurting those legally innocent people. And the other big case we wanted to mention here was Cruz versus Arizona. And in this case, the court said the Arizona courts couldn't refuse to entertain a defendant's Simmons claim. This is a claim that a sentencing had violated a defendant's rights because the jury hadn't been told that the defendant would not be eligible for parole if they were not sentenced to death. So basically, the jury might have imposed the death sentence because they were under the mistaken impression that otherwise, the defendant might end up back on the streets. We've talked a lot on the show about how the court has narrowed the availability

of remedies, even when it hasn't always narrowed rights. And to be clear, my turning off the camera is not because I don't find any of this interesting. I find it incredibly interesting. But I think remedies is something that a lot of our listeners are a little shaky on in part because it's not a course that's offered at every law school or maybe not by a ladder track faculty member. I don't remember it being offered when I was in law school. And so this might just be a part of the law that you really only get to know through serious practice. But Isha, you are someone who practices in this area. So what do you make of this trend at the court where you may have a right and the court may recognize that right, but they're not especially bestirred to offer you an avenue for exercising or remedying a violation of that right, but they're not especially bestirred to offer you an avenue for exercising or remedying

a violation of that right. As Leah noted up top, longstanding trend at the court to narrow the availability of remedies. And still, I think Jones versus Hendricks marks a new and even more troubling chapter, right? So as Leah noted, the bottom line in that case is court basically says you are out of luck. Innocence doesn't matter. For folks who have already filed one habeas petition, so ironically, the folks who have already served the most time under a sentence that should never have been imposed, they can't file a second and say, hey, now that the Supreme Court has decided the thing I did was not even criminal in the first place, can you take another look?

So that's bad enough. But I think that the methodological implications of Jones are pretty bad too. So from the time Justice Gorsuch got on the court, he's posited this kind of aggressively narrow view of the scope of habeas relief, started in a concurrence, has migrated into various majorities, and now we sort of see it as the kind of law of the land. Second, the court in Jones canvases kind of founding era practice and kind of concludes that innocence didn't matter at all at the time of the founding, which is kind of scary and dangerous for all sorts of settings,

not just for this kind of procedural barrier. And finally, the court in that case formally inters the habeas clear statement rule. So for a long time, the Supreme Court had said when you are going to be interpreting a statute to foreclose habeas relief to a class of people, you need a clear statement to that effect. That rule's kind of been on the rocks for a while. I can't really remember a case where it operated to the benefit of the habeas petitioner in a long time.

But this case formally inters and basically said there's no such thing. So bad enough to say all of these people who are actually innocent, who are not covered by the terms of the statute, have no recourse. But these kind of other seeds, this kind of Justice Gorsuch view of very limited scope of habeas, this idea that at the time of the founding, innocence didn't matter, and this notion that the kind of Congress needn't act with any particular clarity before foreclosing habeas relief. I think those are sort of scary seeds that have been planted and will continue to been feted as this noted libertarian in federal criminal law, but the court's narrowing of remedies hasn't been picked up on to the same extent as their narrowing of the scope of federal criminal law or substantive criminal law. And it calls to mind, you know, two things. One is what I perceive to be something of a disparity between the court overruling Roe formally in Dobbs, and then effectively allowing a state to nullify the protections of Roe through a procedural ruling

in the SB8 case, like people really latched on to Dobbs and its implications. And, you know, there was attention certainly to the SB8 case, but nowhere near the same extent, especially once the court issued its decision in Whole Woman's Health versus Jackson. And I worry that the court's like differential treatment of substantive criminal law on one hand and remedies on the other is kind of getting at the same issue. And it calls to mind one of my all-time favorite law review articles by Carol Steiker, Counter-Revolution and Constitutional Criminal Procedure in the Michigan Law Review, where she makes this point. So if you're interested in that, please check it out. But I actually wanted to draw like another possible breakdown among the justices, not just between, you know, those who are able to recognize

rights, while not recognizing remedies, but another remedy ish breakdown. And I think this one is reflected in Cruz versus Arizona, as well as another crim ish case from this term Reed versus Gertz that the court heard this term, but to float this, I will have to get into the weeds for a second. So bear with me. So both Cruz and Reed are basically, to my mind, about whether Kafka can be a guide for a state's criminal legal system. Because more specifically, Cruz was about the enforcement of, as Kate noted, the Supreme Court's decision in Simmons in Arizona. Simmons had said that a jury had to know whether they did not impose the death penalty if a defendant would be eligible for parole. And the Arizona courts said that decision, Simmons, did not apply in Arizona for like 20 years, even though Arizona had formally abolished parole for felony convictions.

They were like, well, there's always a chance of a commutation. But then in 2016, the Supreme Court said, knock it off. Simmons actually does apply in Arizona. But then after that, the Arizona courts refused to apply Simmons, where a defendant had already been sentenced, on the ground that Simmons was an old rule that had always applied in Arizona, and you could only challenge your conviction on the basis of new rules. But of course, this makes no sense, as Justice Kagan pointed out in the oral argument in Cruz. Bad faith or not, I think Kafka would have loved this. Cruz loses his Simmons claims on direct appeal because the Arizona courts say point blank, Simmons has never applied in Arizona. And then he loses the next time around because the Arizona

courts say Simmons always applied in California. I mean, tails you win, heads I lose, whatever that expression is. I mean, how can you run a railroad that way? The rule was the rule in Simmons has never changed. Well, but it wasn't the rule in Simmons in Arizona. I mean, you know, maybe I'm just being simple-minded about this, but at point A, Simmons was not operative in Arizona, and in point B, Simmons was operative in California. Change in the law. Well, every precedent is a change to some extent, but they

Well, that's a big change. I mean, the right is not there to be invoked. Now the right is there to be invoked, and that happened as a result of Lynch. Now, it's true, it should have happened earlier. But in Arizona, Simmons could not be invoked. The defendant would have been told, too bad. Now, the right can be invoked. That's as big a change of law that there is. And then Reed was basically about whether you can bring a federal civil rights claim in federal court that's related to a state criminal proceeding. You know, when a state trial court denies you access to post-conviction DNA testing, do you have to immediately challenge that denial in federal court and have two simultaneous proceedings ongoing? Or can you wait until the state's final appeals court says, yes, you're denied access to post-conviction DNA testing to launch a separate proceeding?

And in both cases, by the same vote breakdown, and this is what I wanted to talk about, the court says, we're not going to do the insane thing, right?uch and Amy Barrett, and then five who are like maybe completely deranged isn't okay. Kavanaugh, who, right, is more law and order than Gorsuch, at least on some substantive Krim issues. And this was the same breakdown last term in a similar case about perversity in Anse versus Ward. And it just struck me as interesting, because it's different than the libertarian law and order breakdown. And here, it's almost flipped. So like, what is happening here? I love the idea of the pro-Kafka and anti-Kafka wings of the court. Because, right, Cruz and Reid, we celebrate them as bright spots, but like, it's really a sign of how absurd it is that there was ever any question how these cases would come out. And it's a sign of how far things have moved, right?

So Lynch, the case you alluded to where the Supreme Court said, Arizona, actually, you do have to obey Simmons. That was my term at the court. And that was a summary reversal, right? That was not even a grant where they needed to hear argument. It was the justices were like, we don't need to hear anymore. Like, we're just going to reverse this on the shadow docket. And now this case comes back up. And literally, Arizona is saying, it's not a significant change in the law, because we were so wrong before that the Supreme Court correcting us isn't the kind of development that allows for this new petition had to be a grant and was a 5-4 decision.

And same thing with Reid. I think in a different era, someone would look at that and say, we don't need to hear argument about this. Like, consensus, you can't do this, state. Let me suggest another way to think about that breakdown, which is that I think for the chief and Kavanaugh, the power of the Supreme Court really matters. And so in Cruz versus Arizona, a lot of the sort of theme you heard at oral argument was just this idea of, you can't ignore us. Like we said this twice. I don't actually know if Simmons came back to the court today. I don't know how the Chief

and Justice Kavanaugh vote to be totally candid. I don't know that they still make the same ruling that was at issue in Simmons, but nothing aggravates the chief more, and I think Kavanaugh is sort of in this line, than this perception that lower courts are flouting the United States Supreme Court. And so when Cruz came up, and it was literally the Arizona Supreme Court saying like, you can't get relief, even though the Supreme Court just told us we need to give you relief because we come up with this very clever workaround. That to me is at least some part of what's motivating the chief in Kavanaugh. And you saw that, you know, that's sort of been the chief's MO in the past as well. So shortly after Obergefell, where the chief dissented, there were a couple of cases

where lower courts are basically directly flouting the teachings of Burgerfell, often dealing with adoption type cases where same sex couples were adopting in one state and moving to another. And those were summary reversals. I think, again, not because the chief had come around on a Burgerfell, but because you couldn't stand how blatantly lower courts were defying a Supreme Court precedent. June Medical versus Russo was in that vein as well. Moore versus Texas. Yeah. There is a kind of South Parkian quality to this.

I mean, it is very much like, you will respect my authority, right? The Eric Cartman principle of judicial review. That's who it is. Exactly. Kate is like, what? Eric Cartman clerked for the court in October term 2019. He's a little known clerk. I'm so loosely familiar with South Park, actually.

He was shared between the retired justices and Justice Kavanaugh. I am not credulously nodding this. I know it's not correct. I love this. The like anti-Kafka slash pro-Cartman. Exactly. Exactly. In terms of where Kavanaugh lines up on this, it sort of depends what is on the other side

of the balance, right? Because I do think it's right that he is on board with defending the court's primacy, but not at all. I mean, not in all circumstances, because SB8, of course, is a really important counter example. So I think if abortion is on the other side of the balance, it would have been too medical and he'd been on the court. He's not a reliable wingman. He's not a reliable wingman for the chief. He's the guy, if he scored, would leave you at the bar, regardless of whether you too had met someone.

Oh, please. Oh, God. I need to take a shower. Don't bring up and – I'm not doing anything of the sort. He's no goose. He's no goose. He's not in it to win it. Okay, so maybe we could pivot now to one more topic we wanted to get your perspective on, Isha, which is that this is our first term with a public defender on the court. We have had justices before who have represented criminal defendants, to be sure, but Justice Jackson is our first former public defender. And we wanted to sort of get your one-year-in readout on what sort of impact she's had on the dynamics of the court's criminal cases. Oh, gosh. There's so much I could say about Justice Jackson. So in lieu of an hours-long fan cast about listening to her oral argument. We have one.

We've got one planned for later this term. Fear not. So maybe I'll just single out one thing in particular, which is sort of her approach to statutory interpretation, which I don't know if I can tether directly to her being a public defender, but I suspect is a function of working in that context with statutes that are messy over many years, and maybe also her time on the Sentencing Commission and sort of seeing how the sausage is made in that kind of quasi-statutory space. So in recent years, you've had, on the one hand, the textualists, right?

What matters is the text and statute, nothing more. And folks who are sort of maybe Justice Breyer's epitome of this think that the text and statute is sort of a starting point at best. And in her dissent in Jones v. Hendricks, this is, again, the case where the majority says, actually, innocent people can languish in prison and BD. Justice Jackson kind of puts forward an alternative to both of those. So she plays in the majority's turf, she does all the textual stuff, but she also has this very pragmatic approach where she says,

look, the weight we should give these words turns in part on how they got there, right? And so the majority puts a lot of emphasis on these kind of two exceptions in the habeas statute. And she basically says, look, it's really clear Congress copy pasted this, right? It was the aftermath of the Oklahoma City bombing. It was, quote, rushed and emotionally charged. Congress made this scheme for federal review of state convictions and then copy pasted it into federal review of federal convictions, forgetting that actually in federal review of federal convictions, there's this other avenue for relief. So this isn't like a textualist dissent, right? A committed textualist doesn't care about why something was left out of the text of the statute, just that it's not there.

And it's not exactly the sort of Justice Breyer, let's just look at purpose and policy and try to make sense of the statute in the abstract. It's this really interesting, I think pretty compelling argument that I think we all know on some gut level to be true, which is that, look, there are some words that Congress haggled over and put a lot of care into. And for those words, we should care deeply about what's in the text of the statute. But it kind of blinds ourself to reality to say we should put just as much weight on the words that were kind of accidentally copy pasted into the statute as those words that were the product of haggling and compromise. And we should at least be sort of attentive to which category these words are in when we're interpreting the statute. So I love that. I can't think of another recent justice that has that kind of sliding scale approach to

statutory interpretation. I think it's really smart. And I think it's tethered to the way in which she practiced for a long time, which was a lot of attention to the words of federal criminal statutes, some of which were the product of a lot of care and some of which were kind of passed in a reactionary fervor after some major crime. So glad you mentioned the Jones or his Hendricks dissent, which I just think is like a masterpiece. Like it goes all in on the idea that sometimes withdrawing judicial remedies for like wrongfully convicted or sentenced people violates the Constitution, which I think is like a really important perspective to have. And that is on top of the statutory interpretation methodology, you know, you noted, which I also think was on

display in Laura versus United States, important Armed Queer Criminal Act decision. And I guess speaking of ACCA, this is my attempt at a transition. You know, Melissa, you're shaking your head. I took that as a personal attack and the video is now off. Girl, girl. Next term, the Corps will also be hearing several important criminal law cases, including an ACCA one.

So I guess, Isha, like, are there any particular cases or decisions that listeners should be especially on the lookout for next term? So I'll be keeping an eye on Jackson, which is a case that my colleague Jeff Fisher and the Stanford Clinic are litigating alongside Andy Adler, a federal defender in Miami. As Leah noted, it's about a provision of ACCA. It's the one that imposes a 15-year mandatory minimum where the defendant has three prior, quote, serious drug offenses. And the question is whether you measure serious drug offense based on whether the drug was on a version of the controlled substance of the schedule in place at the time of the state offense. It's the government's position.

At the time of the federal offense, that's Jackson's position. Or at the time of sentencing, that's the position of a companion case. The issue is tremendous salience because what we think of as a controlled substance has changed so much in recent years, right? Almost always to decriminalize things. So for instance, until 2018, CBD from hemp was a controlled substance. And so whether someone with a conviction that implicates that substance from before 2018 gets this mandatory sentence turns on the outcome of this case, on this Jackson case.

That's the merits docket, Isha. Are there things that could be happening on the shadow docket? As we know from Steve Vladek, we have to be as attentive to the shadow docket as we are to the merits docket. So what are you looking for there? So this podcast has covered in the past, this court's kind of penchant for summarily reversing, that is again, without briefing an argument in certain pet issue areas. Two of the most common areas are really criminal justice

adjacent, cases where a lower court has granted habeas relief, right, where a lower court has sided with a criminal defendant, and cases where a lower court has sided with a criminal defendant and cases where a lower court has denied qualified immunity. That is where a lower court sided with usually a victim of police brutality against an officer. There were no summary reversals in either category this year. And this is the second year in a row there have been no habeas summary reversals after four such reversals in October term 2020. And this is despite, you know,

someone in the court being really, really eager for it. And one particularly apoplectic dissent from denial in a case called Shoup v. Cunningham, where the Sixth Circuit had granted habeas relief to a criminal defendant. Justices Thomas, Alito, and Gorsuch have this very mafioso paragraph where they say, the Sixth Circuit must do better

with or without this court's help. And they call out not only the panel for granting habeas relief. And in this case, the panel literally just told the district court to take a closer look at the fact that the jury foreperson in the case knew the victim's family. They say, we're not only mad about that, we're mad at every other Sixth Circuit judge for not taking this case en banc to make sure this man gets executed. So not suggesting that the court as a whole or individual justices are moving, and that's why we're not seeing summary reversals. But one theory I have is that historically, I think this area, kind of the shadow docket summary reversal area,

has received relatively little interest from the Supreme Court bar, partly for the reasons that you talked about on your podcast with Steve Vladek, that shadow docket always gets less attention than merits, partly because the shadow docket doesn't lead to oral argument, which has sort of become the currency of the realm for many practitioners. But in recent years, I think there's been a concerted effort by many folks, including my colleagues at the Stanford Clinic, including my colleagues at the MacArthur Justice Center, other actors like the Institute for Constitutional Advocacy and Protection at Georgetown, to step in and provide resources and support to civil rights and criminal

defense attorneys fighting to preserve their victories against summary reversal. And so I'm hopeful that what we've seen this last term or two will continue going forward and that this coalition will be able to kind of work together to stave off future sum revs. I think that's all we have time for. But wow, did we cover a lot, Isha, really substantive in depth. I mean, we really covered the criminal law docket and probably did it in a way that was more comprehensive than the justices themselves. So hats off to you. No shade, just like a compliment to you. Oh, I intended that as shade.

That's why I was laughing. A compliment to Isha. Both a compliment and a neg. That's how we do it. The best kind. The best kind. We giveth and taketh away, like the court itself. But Isha, as always, it's so great to watch you soar doing the great work

that you're doing with your students and the Stanford Supreme Court Clinic. Thanks so much for coming back to Strict Scrutiny to give us the lowdown on what's going on on the criminal law docket. Thank you so much for having me. At the current rate of Trump's legal troubles, every Georgia native is going to be put on a Trump jury sooner or later. So you might as well grab our totally impartial potential juror tea to signal that you're totally unbiased and ready to serve. Head to crooked.com slash store to shop now to get yours. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Littman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Ashley Mazzuolo is our associate producer,

audio engineering by Kyle Seglin, music by Eddie Cooper, production support from Michael Martinez and Ari Schwartz, and digital support from Amelia Montooth.