Strict Scrutiny - The Inner Life of Coach Kavanaugh

Episode Date: May 2, 2022

Leah, Kate, and Melissa bring you a jam-packed show recapping news, arguments, and opinions from the Supreme Court in the past couple weeks. Recaps include "the praying coach case," aka Kennedy v. Bremerton School District [10:26], Shoop v. Twyford [45:27], and Oklahoma v. Castro-Huerta [50:05]. We also do some math trying to figure out who might-- or might not-- have the still-to-come opinion in Dobbs [57:21], and get out the kleenex for the Chief Justice's teary tribute to Justice Breyer [1:06:44]. 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 and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Littman. I'm Melissa Murray.

And I'm Kate Shaw. And we've got a jam-packed show for you today. We'll detail some breaking news. We'll also recap this last week of oral arguments. And we'll finish up with some forecasting of the end of term and some celebratory news. First up, let's talk a little bit about this newest slate of Biden appointments that was just announced. On April 27th, the administration announced a new slate of judicial appointments, which includes Sarah Miriam, who is currently a district court judge in Connecticut who's been appointed to the Second Circuit. Miriam should be a familiar face to the Judiciary Committee because she was

just nominated to the district court last year after serving for six years as a magistrate judge in the District of Connecticut. And she continues the Biden trend of appointing public defenders to the bench. She served as an assistant federal public defender in Connecticut for nearly a decade before joining the bench. Interestingly, she also worked as a campaign manager for now Senator Chris Murphy when he was campaigning for a seat in the House of Representatives in 2006. So I think it's safe to say that she has some support among the senators. What do you think? Seems safe. And also, I do think it's good to have people who have experience with politics like on the bench. I think it's great.

Okay, so second appellate nominee that we got. The administration also announced the nomination of Lara Montecalvo, who is the top public defender in Rhode Island. She's been nominated to fill O. Rodgerie Thompson's seat on the First Circuit. Judge Thompson announced that she is taking senior status, although I think contingent on the confirmation of her successor. So we're now one step closer to her actually getting to take her senior status. Montecalvo has been the Rhode Island public defender since 2020, after serving for 16 years as an assistant in that office. She was also a trial attorney in the tax division at Maine Justice in the federal government from 2000 to 2004.

And we should say that strict scrutiny super fan and super guest Sheldon Whiteboard Whitehouse has praised Montecalvo as an exceptional public servant. The administration also announced nominees for three district court seats. U.S. Magistrate Judge Elizabeth Haynes for the Eastern District of Virginia, Ann Nardacci, a partner at Boyd-Shiller-Flexner LLP for the Northern District of New York, and Ana Reyes, a partner at Williams & Connolly for the District of Columbia. Haynes served as an assistant public defender in the Eastern District of Virginia for seven years. Reyes would be the first Hispanic woman and first openly LGBTQ person on the D.C. District Court if confirmed, according to the White House announcement.

A couple of observations about all of this. First of all, I love the big PD energy. That's really great. But I will also note that at least among the district court nominees, there still seems to be some appetite for big PD energy. That's really great. But I will also note that at least among the district court nominees, there still seems to be some appetite for big law partners. So that is interesting and perhaps something of a departure from the earlier nominations. But I am worried about this strategy, if it is a strategy, of appointing sitting district court judges to circuit seats because you're just creating another vacancy. And I wonder, given the prospect of the midterm elections, if making more work

down the line is a smart choice at this point. I totally agree. One other observation that I didn't even note when the press release went out, but this is an all-female slate. And it has just now become so, you know, it has just become so routine in the Biden administration in the greatest way because the majority of nominees have been women and or people of color. And it's just like, I didn't even know that it was an all-female slate until we just ticked through everyone. So like, great for them on continuing to center diversity. And great that they have now picked back up, like churning the machinery post-Jackson's confirmation. But as we have said, and we will continue to say until like every vacancy is filled, like they really have to stay on it. We need to see a bunch more slates in

the coming weeks. And we should say that even though they have now picked back up the process of nominating individuals to fill vacancies, there are a bunch of nominees from last year who are still waiting on votes or even on their hearings, right? So let's There are a bunch of nominees from last year who are still waiting on votes or even on their hearings, right? So let's take through a few of these. So Ariana Freeman, who would be the first Black woman to sit on the Third Circuit and a former public defender, right? Another example of the administration prioritizing PDs. She was nominated in January. She's still waiting for a vote after her March hearing. We've got Andre Mathis, who's a Black man who was nominated to serve on the Sixth Circuit in November of 2021, still waiting for a hearing. Stephanie Dawkins Davis, who is a Black woman, was nominated to

the Sixth Circuit in February. Should not be in any way controversial. She served as a judge in the Eastern District of Michigan since December 2019, which, like check your calendar, means she was nominated by Donald Trump to that position. And she was a magistrate judge for that court from 2016 until 2019. She also served in the U.S. Attorney's Office for the Eastern District of Michigan from 97 to 2016. So, you know, like the least controversial, broadly bipartisan nominee you could imagine, also still waiting. Also waiting is Nancy Gabbana Abudu, a black woman who was nominated to the 11th Circuit in December of 2021. And she is a civil rights lawyer at the Southern Poverty Law Center. So what do Freeman, Mathis, Dawkins-Davis, and Abudu have in common, do you think?

Well, Biden nominees. They're all Biden nominees. Must just be that. They're all lawyers. That's why it. And they're all also African American. And oh, my. Now, maybe it's nothing. Maybe it's Maybelline. I don't know. But this is a bad look, I think. Like, get these people a hearing. Get them forward. These are really talented lawyers

who would make great judges, some of whom are already judges. We need to get this done. So these are just the circuit court people who have been waiting. There's still also a lot of district court nominees who are waiting for hearings too. But I do want to note that it is slightly striking that all of the circuit court nominees who are waiting happen to be of the melanated persuasion. And while we are on the topic of district court nominees waiting for votes, where is my discharge motion and vote for Judge Dale Ho, nominee to the Southern District of New York? Still waiting. Still waiting. I've been waiting for like six months now. You're waiting for Dale Ho. It's a new existential play.

Are we going to have an entire celebratory episode when he's finally confirmed, Leah? Oh, yeah. It's going to be at least a segment. Yes, at least a segment. Yeah. Okay. It's also worth noting that J. Michelle Childs, who has been nominated to the D.C. Circuit, had her hearing this week and is expected to be easily confirmed with bipartisan support from both the committee and the chamber. Although let me just say that if she doesn't get at least 60 votes, I am going to start to think that maybe Lindsey Graham is not completely on the level because he assured

me that she would if nominated to the Supreme Court. So she should obviously get 90 for the D.C. Circuit. If she doesn't, it's obviously a conspiracy wrought by Demand Justice. Well, it's obviously a conspiracy by the right to destroy her life, right? Because last time we heard it was a conspiracy of the left that was destroying her life by nominating her to the D.C. Circuit. So, yeah, she doesn't get 60 votes. It's the conspiracy of the right to destroy her life.

OK, so other news. I guess maybe we might need to make this a recurring segment on the podcast. More states passed more abortion restrictions in the eagerness for the Supreme Court to overrule Roe versus Wade. So Oklahoma has enacted a Texas-style abortion ban, basically creating a novel enforcement mechanism, although it's not so novel anymore, in an attempt to allow the law to go into effect without being challenged. Oklahoma also interestingly modified what is known as their trigger law, a law that would go into effect in the event that the court were to overrule Roe v. Wade. A trigger law would, if Roe's overruled, completely ban abortion. Oklahoma has decided to

modify the language in that trigger law to say, well, if Roe's overruled, including in part, then we enact a total ban on abortion, basically creating a contingency for the event of the Supreme Court deciding Dobbs along the rationale that the chief justice had floated at oral argument, namely, not completely overruling Roe, just eviscerating it by allowing states to prohibit abortions before viability. It's important to be ready. Yeah, no. You literally need to ban abortion under any circumstances at all time. That seems to be the race these states are in.

May I ring a silver lining from this? Seriously? What if, like, the partial— Yes. I'm waiting. Work with me, Kate. All yours. I'm channeling Kate Shaw, eternal optimist.

I can't right now, so please. The whole idea that they would have a trigger law that takes effect if Roe is only partially overturned might suggest that maybe they think that the chief justice is actually doing things behind the scenes. Like we have been incredibly pessimistic about what's going to happen, but it seems like Oklahoma is hedging a little bit. Yeah. pessimistic about what's going to happen. But it seems like Oklahoma is hedging a little bit. Yeah, I will return to this at the end of the episode. But I think there are several pieces of evidence that suggest maybe there has been a change after conference votes,

such that maybe someone is thinking about joining the chief justices, partial. Look at us. We're like Sybil Trelawney reading tea leaves like witches. I love this. It's her little coven. But isn't she almost always wrong? No! She's right when she needs to be. She's right like in a couple of really big important moments.

Well, I mean, that's all you need to be right about, Kate. And this qualifies. We're right about the big stuff. And, well, we'll see if we're right about this one. I think we are. Okay. So let's shift to the April sitting, which was packed with a bunch of really interesting arguments. So we will do our best to do them justice in the time that we have today. And those that we don't get to today, including Biden versus Texas, the really important decision about the so-called remain in Mexico policy, we will have an extensive

breakdown of on our next episode. So maybe let's start with Kennedy versus Bremerton school district. The plaintiff in this case frames the issues in the case as follows. First, whether a public school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection. And two, whether assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it. This is the case where the football coach knelt in prayer at the 50-yard line after

the game, and the school board and the students allege that he encouraged students to join him. And he said some things about, you know, this is how he was making these student athletes into good people, good citizens. So, you know, there is some element here of character development that he has sort of framed this activity around. It's also worth noting that the coach not only encouraged students to join him at the 50-yard line, he also invited state legislators and supporters onto the field to participate. Nevertheless, he's framing this case and trying to litigate this case as being about nothing more than, quote unquote, brief, quiet prayers that are private, but still

that are done at games by a coach with perhaps students and also maybe even state legislators and supporters, but I digress. As we said in a prior episode, there is really no question, like absolutely no question how this case is going to come out. Coach Kennedy is going to prevail here. The court, I think, is going to say that the school district cannot discipline the coach, a public school official, from engaging in prayer at an event at which the coach is fulfilling his public school duties and at which students are present. So this is, I think, a new frontier for religious liberty, one that seems to eschew any pretense of anyone else's religious liberty and eschewing any pretense that we might have a viable separation between church and state. So good times.

Good times. cited a bunch of school prayer cases in which it has repeatedly made clear that there are significant limits on public school officials' ability to engage in prayer at school events, on the ability to have private people who are not school officials but are nevertheless present at school events engage in prayer at school events. And Justice Kagan had this great extended question in which she kind of summed up the reasons for why that is. So there's like lots of debate about the court's precedents, and she did the thing she often for why that is. So there's like lots of debate about the court's precedence. And she did the thing she often does, which is like to cut to the heart of the why these cases have set forth the principle that they have. So let's take a listen to that here.

I mean, really, why? Why can the school discipline him? And I'm going to just sort of suggest and find out whether you agree that if you look at our prayer cases, the idea of why the school can discipline him is that that puts a kind of undue pressure, a kind of coercion on students to participate in religious activities when they may not wish to, when their religion is different or when they have no religion. Is that correct? So, look, I think it's simpler than that, quite frankly. You see, I think a lot of this Garcetti stuff is just not getting to the heart of what we care

about, what our cases have long cared about in thinking about these questions, which is coercion on students and having students feel that they have to join religious activities that they do not wish to join, that their parents do not wish them to join. Okay, assume that the school district had said the right things. They had said, we don't really like this because it is a form of pressure, a form of coercion. We're worried that students will feel, he gets to put me into a football game or not. He gets to, you know, give me an A in math class

or not. And this is a kind of coercion that's improper for 16-year-olds. I see that point. So let me give you a hypothetical. So the hypothetical is you have a coach and he has historically been giving prayers in his post-game talk. And then the school says, don't do that. And let's say that the school uses the right words and says, don't do that because we think it poses a coercion problem. And he says, okay, I won't do that. But instead, he says, you know what, I'm going to start the post-game talk a minute later than I usually do. And in the meantime, I'm going to pray and please, you know, join me if you're so moved. But what's a student to think at that point?

All of this came after Justice Kagan got Paul Clement, who is arguing on behalf of the coach, to agree that the school could discipline the coach if he prayed during the official post-game talk or if he were a math teacher who prayed in math class. And interestingly, Justice Kavanaugh, well, excuse me, let me rephrase that, Coach Kavanaugh, also seemed to understand why student athletes might feel a kind of coercive pressure to participate in that. So let's hear from the coach. What about the player who thinks, if I don't participate in this, I won't start next week? Or the player who thinks, if I do participate in this, I will start next week? And the player wants to start.

So, Kate, it wasn't clear to me that he was definitely in Coach Kennedy's camp here. I agree. He sort of took this player-centered perspective at a couple of points to say like, I actually do understand the concern about subtle pressure or coercion. And that does seem like a relevant constitutional consideration. But I have to point out that after that exchange that we just played, there was another one that took it sort of a step further. So let's play that exchange now. I guess the problem at the heart of it is you're not going to know because the coach is probably not going to say anything. Like the reason I'm starting you is that you were,

you knelt at the 50-yard line. You're never going to know. And that leads to the suspicions by parents, I think. I'm just playing out what the other side is saying here, the suspicion by parents that the reason Johnny's starting and you're not is he was part of the prayer circle. And, you know, that suspicion, I don't think he can get around. That's a real thing out there. And, you know, that's going to be a real thing in situations like this. I don't know how to deal with that,

frankly, though. How will you ferret that out? Because every player is trying to get on the good side of the coach, and every parent is worried about the coach exercising favoritism in terms of the starting lineup, playing time, recommendations for colleges, et cetera. Kate, did this remind you of our conversation with Ruth Marcus? Like how he's gotten where he is by being a good guy on the field, whatever. I remember he actually even did reference basketball and then said like, oh, say football.

He like weirdly tried to slide into basketball at one point from football. But it was a little bit like really every parent is thinking or worrying about starting line up playing time, college recommendations. Like what a bizarre and cynical way to approach your kids' sporting endeavors. Sure, like kids sports are great. But like every parent, what world do you live in? It was just so weird. I actually think this is Northern Virginia like in Maryland and just sort of the entire sports scene and fancy elite private school.

Yeah, that's the answer. Like that's the world. But I just think it's like, yeah, but they just, he, I think, and the conservative legal movement wants to erase the like specificity of the lived experiences of the elite white guys who end up on the Supreme Court. And it's only everybody else who has relevant life experiences. We need to worry about impacting their ability to be neutral and objective judges. And it's like, it was just revealing. He is positioned in a very particular kind of elite world. Occasionally, you just get glimpses of that. And not even like, I mean, they're all like elites. Obviously, these are products of like elite education, things like that. But there's just like a specificity to his experience that he sometimes seems to assume is

universal when he says every parent that I think just like reveals they all are like embedded humans. I think working class immigrant parents like mine were just like, I actually don't want to talk to your coach. I don't care if he played. They're probably not like staying awake late at night worrying about the college recommendation or your coach is going to write you. It's just people. When you layer that on to Ruth's analysis of his time at Yale playing pickup basketball

with George Priest. Oh, to him it was. Then it all comes into focus, right? This is how he got where he is. This is how you get it. Like, it totally makes sense that the coach would see this as a way to mold young people into good citizens and that students would understand that they would be currying favor with the coach to do this and that parents, too, would understand this.

And I will say, to his credit, to circle back to the point that you started with, he's not saying, and of course, that's the natural order and fine. He's like, maybe that's a problem, actually, from the perspective of religious freedom. And so I think he could well come down there, which would be fantastic, but maybe not. But either way, we sort of learned something about the inner life of Brett Kavanaugh during that exchange. Coach Kavanaugh. Justice slash Coach Kavanaugh. Another person who I thought had a very interesting set of colloquies here was Justice Barrett. And she pushed back on Coach Kavanaugh's worldview. But interestingly, she brought Young Life into the discussion. And if you went to UVA in the 1990s, I know you know what Young Life is because we all learned about Young Life during that time.

But essentially, Young Life is a Christian evangelical youth group at colleges, I think many colleges throughout the South. And they're sort of focused on their faith. Sometimes there is a proselytizing element to it, not always, but sometimes. There were definitely moments at UVA where some members of Young Life might be bestirred to pray for you because they were worried about you. I was not obviously a part of Young Life, although I was part of a number of groups in which there were Young Life members. And it was not my bag, but it was very definitely a thing and very definitely part of the social milieu of my college experience. Anyway, Justice Barrett brought some big Young life energy to oral argument.

I never thought I would see this at the Supreme Court, but here we are. Second question is to this coercion point. Let's imagine that Coach Kennedy runs a young life group. And he has many players and many other kids in the school, but many of his players, because they really admired Coach Kennedy, come to his home for these Young Life meetings. And many of the concerns that Justice Kavanaugh is identifying are present. You know, a lot of the players come because they think they're going to get more playing time if they come and show up and participate in this Christian youth group. I take it your position would be that that's entirely private speech, and even if there's a coercive component to it, that the school can have nothing to say.

I think that sort of made it very clear where Justice Barrett might be on these issues. Spoiler alert. I think she's with the coach. But if she hadn't been completely clear in that exchange, she made it even more clear in this exchange. So let's listen to this one. Well, I understand the free exercise part of it. But, you know, even if he's not communicating to an audience, so he's completely silent, he just takes the knee. That's protected speech, even if he's not trying to communicate to anyone around him,

just to the Almighty. I was today years old before I realized that someone would actually invoke the quote unquote Almighty at oral argument. That was, I think, a jarring statement for me. And let me just say this. I was raised in the church. I attend church. But there is a certain kind of connotation, I think, that people might make and assume when you invoke the Almighty, especially in a situation like this when it's like a legal case. And I was surprised that she went there. And it seemed

almost reflexive. Like, you know, I don't know if she did it consciously or it seemed reflexive. It felt reflexive to me too, that moment. And also there's a moment where she just casually invokes the Our Father, which I was not raised like in a church at all. But like my mom's Catholic, like I definitely know the Our Father, but like, I'm sorry, like, not everybody does. And so it's, it was really interesting to sort of, again, like, Young life, the Almighty, Our Father. Yeah, sign of the cross. I mean, again, like people look like, probably that's not unfamiliar to a lot of people. But it's also just like, it assumes a sort of shared vocabulary instead of experiences that is actually fairly specific and very sort of casually unnoted, but like all these very revealing moments. And I think that was definitely one of them, too.

This reminds me of something that you said, I guess, maybe 10 episodes now ago, Leah, when Justice Barrett had earlier, I think she was talking about the Palestinian-Israeli conflict. And what did she say? She asked the lawyer, well, what if hypothetically, you know, someone had asked about the position on the Jews? And it was meant to be, I think, a reference to what is your position on Israel? Like it was just kind of a lapse and a slip. And didn't she say in the same exchange, the Jewish-Palestinian conflict? Yes. Really? Palestinian conflict? Yeah. Is there any kind of, I mean, how would you even know if a school taught all religions are bigoted and biased or, you know, Catholics are bigoted or, you know, or we take a position on the Jewish-Palestinian

conflict because of our position on, you know, Jews, right? It's just this fascinating window into the worldview that these justices are coming from. What was lacking in this argument was a perspective of someone who has ever grown up in a community where they were a religious minority. And they were viewed as like a prospective convert and someone who other members in the community like wanted to save. So like I grew up, people view us as like one of like very few Jewish people in a suburban town in Minnesota. And I remember I like switched schools and these new friends I thought I had made brought me to like Bible camp and study. And they were like receiving extra points when they had this like little Jewish girl reciting Bible verses. And I

had no idea what was going on. I was in elementary school. Oh my God. And when my parents found out, they were so livid and I just wish someone appreciated. She's in a bubble. She's in a bubble where, you know, everyone knows what young life is. Everyone knows what the Our Father is. Everyone refers to God as the Almighty

and there is no sort of disruption in that thought. It's just, it's a lot. Just the inability to understand the perspective of what it might be like as a religious minority in a community that is led by a school official who views it as their role to make better people through prayer and like the exercise of their religion. It's a lot. Yeah, it's a lot. Let's get back to Coach Kavanaugh because he had some more illuminating moments. Coach K. Coach K. I love this. I love this room. So Coach K slash Justice K, as he did in a prior argument, suggested maybe they would just limit the court's inconvenient prior school prayer cases to their facts, because that's what we do now with cases we don't like. So here come those clips.

Let me just take it there for a second. On the establishment clause point, the lemon endorsement test we haven't implied i don't think that is a test anymore we haven't applied that in two decades uh and so i don't think that helps on the establishment clause side on the schools cases santa fe ultimately i think is the case and mr clement was saying this goes beyond santa fe Fe in terms of extending the Establishment Clause because it's not over the public address system. It's not the same fax situation that we had in Santa Fe, where it was to everyone in the crowd by the school over the public address system. So we shouldn't, I think he's saying, shouldn't extend Santa Fe, which itself extended Lee v. Weissman, which extended Engel.

We shouldn't extend it further to this situation. And it would also cause serious doubt on— I guess I'm going to stop you there and challenge you on that. I don't see why the court couldn't say, and I'm not saying this is what we should do, just to put on a line drawing, Engel, Lee v. Weissman, Santa Fe all remain in place. And Santa Fe applies, you know, logically to locker room or huddle speech. But we're not going to extend Santa Fe to something beyond that, really, for the line drawing reasons. The sign of the cross example, we had a discussion about that.

And there would be many other hypotheticals. We just can't have the center of the attention be the line for establishment clause purposes, for example. Can we talk about this? This is, I think, a different species of disdain for precedent. So this isn't stare decisis. It's for suckers. If you haven't used this precedent in, like, the last 10 years, it's gone. It's kind of like stare decisis, use it or lose it.

Yeah. Paid time off for it. It's like if you haven't used this, maybe because it's settled and now no one is challenging it, it's not really a precedent and you don't have to obey it. Can you imagine, you know, we're con law professors. Can you imagine if a student on the exam just like walked into the exam was like, well, I didn't talk about any cases that are 50 years old because like those are just irrelevant. I mean, what? Like Brown versus Board of Education, use it or lose it. Right, exactly. Well, we use that now to invalidate school integration. So boom, we are using it. Lawyered. No, it was also like it was so casual and contemptuous of the school officials were like trying to understand like what the actual Supreme Court doctrine is.

And it's like, well, they should know. We haven't really used lemon much recently, like as they crafted their policy. And it was like, is that realistic to hold them to this kind of standard that they're supposed to be following the docket of the Supreme Court in the way that the three of us are? Like that doesn't seem like reasonable. Like, if you're not going to forthrightly explain the status of your own president, like, I'm not sure how it's fair to expect school administrators to actually, like, distill and understand it. Can we also talk about some of the advocacy? So Coach Kennedy was the other Coach K, the actual litigant here, not the justice, but the litigant Coach K. He was represented by former Solicitor General Paul Clement. And as you know, I have a little bee in my bonnet about Paul Clement because he continues to insist that NYU does not have a campus.

I mean, does he continue? Is this a position that he has doubled down on? Maybe it's just in my head. Maybe it's just in my head. He's not publicly disclaimed his statements. And until he does. And until he does, I will continue to argue on this. We're going to bring it up every time he argues before.

Every single time. But it's okay. Anyway. So at one point, Paul Clement, who is representing the coach, said that the court's prior cases might be distinguishable from the circumstance because one of them involved a loudspeaker. Yeah, but I think that the loudspeaker, the loud speaker sort of ties this audience back to the government speech and ties it all together. I think, you know, when Mohammed Salah, you know, has a religious exercise after a goal at Anfield, the fact that the crowd is there is incidental. It's not a captive audience in that sense. It's not he who brought them there. So I think it kind

of comes back to government speech in that respect. And I think when the coach takes this 15-second fleeting prayer at the end of the game with no loudspeaker, barely audible, it's radically different from the use of the loudspeaker and is much similar to Mohamed Salah, Tim Tebow, all of those things. This is interesting. I had to look up who Mohamed Salah was, but I have to say equating Mohamed Salah and Tim Tebow is quite a flex. So, okay. I was surprised by that one. You know, one of these things is not like the other. But I guess this is what passes for an analogy these days. You know, the coach represented by Paul Clement is trying to distinguish all of those inconvenient school prayer cases

in part by saying that the prayer here was private and not while the coach was performing school duties. And he did so in part by trying to offer a hypothetical back to none other than Justice Elena Kagan. Professor Kagan. Professor Kagan. Professor Kagan. Professor Justice Kagan. And look, friends do not let friends try to throw the high bow back to Professor Justice Kagan.

Because you know what? That does not go well. Let's hear it. Let's hear it. Okay, even though he says, you know, this isn't the school district speech. And even though everybody knows that, actually. I mean, there must be countless times when a coach in the post-game talk or a teacher in math class, where people would totally believe them if they said, I'm doing this as just me.

I'm not doing this because the school district says it. But for me, this is super important to me, this prayer, and I hope you'll join me. Now, that seems to me to be coercive of 16-year-olds, regardless if they know that it's him and not the school district. He is the one who's going to give me an A or not. I guess it just depends. I mean, if you're saying this, that this happens in the middle of class, I might believe you. But if you're just saying, I mean, look, take a familiar example. It's Ash Wednesday. A teacher goes to morning mass, comes in with a big black mark on his or her forehead. Is that coercive? No, because nobody's asking the students to participate

at that point. They don't have a choice of participating at that point. I felt the burn in my chest. This is big. Like I ask the questions, I don't answer them energy. And like, she's just not here for the like, bullshit, like false analogies. And that was coming through. And I also felt the burn slash shudder in my soul and body just like, oh, gosh, I. Justice Kagan was bringing some big professorial energy to this. And not to be outdone, we got some nice whataboutism energy from some of our favorites, super guests, super fans, Justices Thomas and Alito, who suggested that what this case is really about is animus toward Christianity and, of course, liberal mobs. Not animus against them, but the liberal mobs purporting animus against Christianity. So let's hear a little bit more from them. Counsel, would if the coach, instead of taking a knee for prayer, took a knee during the national anthem because of moral opposition to racism,

how would your school district respond? Would that be a Garcetti? Would that be government speech? Okay, he came out of the gate hot with this. He was like, one second and Colin Kaepernick, please. Like, what? And then Alito, also not to be outdone, is like, do you remember in the Boston flag case

he kept talking about the North Korean flag? And I was like, I feel like you need to update your analogies a little bit. Papa's got a brand new flag. So now, he's like, I've got one. I'm your analogies a little bit. Papa's got a brand new flag. So now he's like, I've got one. I'm going to get you with it. What if you guys, like the liberals, just love Ukraine, right? So obviously if the coach is going to –

you guys like take the position that countries should not be invaded and citizens slaughtered, like because you guys are politically correct. And so surely if somebody came and waved a Ukrainian flag at the 50-yard line, you would throw him a parade as opposed to discipline him. So maybe, sorry, let's play that clip here. Suppose that everything about this case is exactly the same as it was in reality, with this one difference. When Coach Kennedy went out to the center of the field on these two occasions, all he did was to wave a Ukrainian flag. Would you have fired him? Okay. So he doesn't say anything about a parade. But clearly he's saying like,

you would have been fine with this. You're not okay because you hate Christianity. That's why Coach K is in trouble. You love the Ukraine. You hate Christianity. Exactly. It has been a minute since he brought this much Trollito energy to an argument that I can recall. And then I thought it was – he was totally miffed that Katsky, who was arguing for the school district, basically said about the Ukrainian flag, like, yeah, we could discipline him there too. If the school says it doesn't want politics of any sort and it doesn't want religious exercise of any sort happening on the 50-yard line, you know, that – it could discipline both. Like, of course. And Alito just kind of like started sputtering, like demanding proof that the school would have responded to his hypothetical in the same way it did. So maybe let's play that here.

That's absolutely something that can and should be disciplined because the school district doesn't want its event taken over for political. Where is the school district rule that says that? The school district has to be able to manage its activities and events. And that's clear. What reason is there to believe that you would have treated that case the same way? Oh, you know, he really had to bring home the Trollito energy at the end of the term.

And this was going to do it. I personally thought Richard Katsky, who was arguing for the school district, was terrific. I did want to highlight his opening in particular. It's a little long, but bear with me. Mr. Chief Justice, and may it please the court, no one doubts that public school employees can have quiet prayers by themselves at work, even if students can see. If that were the issue, there wouldn't be a case here because the district allowed that. But that wasn't good enough for Mr. Kennedy.

He insisted on audible prayers at the 50-yard line with students. He announced in the press that those prayers are how he helps these kids be better people. And after the district closed the field to the public, he expressly permitted legislators and others to join him. Under Garcetti, those are the functions of a coach, not a private citizen. But even if not, under Pickering, Kennedy's rights would still have to be balanced against the district's interest in controlling its events and messages, protecting the religious freedom rights of the students and their parents, and managing the

workplace. Some of these kids were just 14 years old. Mr. Kennedy's actions pressured them to pray and also divided the coaching staff, sparked vitriol against school officials, and led to the field being stormed and students getting knocked down. When Mr. Kennedy repeatedly ignored sincere efforts to accommodate personal prayers, what was the district to do? If a math teacher knelt and said audible prayers in class just before the bell, the school district could act. Coaches have far more power and influence, especially at the time and place of those traditional post-game speeches. To win, Mr. Kennedy would need this court to whittle Garcetti to nothing and toss Pickering aside and disregard students' rights and ignore the need to maintain control over school events. Doing any of that on Kennedy's hypothetical facts would be ill-advised.

To do all of it would be extraordinary. And just one thing to flag about Katsky. There was just, I found one thing kind of frustrating, which is that he said at a few points that there was evidence that the school district was worried about coercion, not just endorsement. Clement kept saying, look, like in all of the documents that the school district produced, all they said was that they were worried about endorsement.

That's not a legitimate basis on which to respond in the way they have. So this is illegitimate and a violation of the First Amendment. And I just, there was the only thing – I totally agree with you. I thought Katsky was great. But he never – this is a problem with as active as this bench is. Sometimes people don't have a chance to respond and provide useful information. But I wanted to be like, tell us where the school said it was worried about coercion because so much of the case seems to come down to whether there's coercion or not. So I presume that the enterprising law clerks, if Katsky is right, and I certainly credit his answers, like that there's evidence Clement was wrong. There's no evidence that coercion concerns

were animating the school officials. Like that's got to be in the record, but I wish he had a chance to explicitly point to where. Did you think that was a concession, like not sort of rebutting the endorsement point and instead focusing on coercion? Because like, you know, it seemed ludicrous to me that the school district, in the face of all of this establishment clause precedent, couldn't be worried about the appearance of an endorsement. And instead, you'd sort of ratchet it up. And instead, what you had to be worried about, if it was at all permissible, was that students would be coerced. When in fact, being worried about appearing to endorse a particular religion is actually still a thing.

In the case law, it is. But I think this court is telling us maybe now it's not. So if you were able to point to both, I think that you as a school district have a better chance of winning. They basically dispatched with the establishment clause. That's what that's like. You can't even be worried about that. I think, interestingly, in this case, part of the tension we're picking up on is the

endorsement test is more favorable to the coach and the coercion test is less favorable. And so it flips the script because for years, the conservative justices have been pushing the coercion test because that's usually less favorable to establishment clause plaintiffs. But here, I don't think a lot of people might think like, oh, yes, this is the school endorsing the coach's prayer, given that the school did try to distance itself from the coach. But even if they did, the risk of coercion is still present because this is a school official who, as Coach K pointed out, that's Coach Kavanaugh. The other K. Yeah, the other Coach K still has the authority to decide whether players play, so on and so forth.

And so coercion here seems to favor the district. And so it's just this weird dynamic in the case, I thought. Yeah, and it used to be like the Courts Establishment Clause cases. There are strains of both, obviously, in a lot of the cases. That establishment encompasses like an anti-coercion and an anti-endorsement principle. It just seems like in this argument, though, the endorsement strand is being completely read out. I think Leah's question, that's an interesting point just for this case or like for all prospective establishment cases. I don't know.

I don't know either. We'll be right back. And now back to the show. All right. Let's move on. There is the intriguingly titled Shoop versus Twyford. And I was immediately, the first thing I thought of was Salt-N-Pepa. I want a shoop. If we could still play music, that would be our intro. We would do that. We would do that here, but we don't. Just imagine it. Just imagine it. Let it walk over you. Or just pull it up. Pull it up separately. Take a break. Take a music break. Yeah, exactly. So the issue in Shoup v. Twyford is whether federal courts may use the All Writs Act to

order the transportation of state prisoners for reasons not enumerated in the federal habeas statutes. And secondarily, whether before a court grants an order allowing a habeas petitioner to develop new evidence, whether it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court. Leah, I know you were all over this, not just because of the subject matter, but also because this was kind of a poignant moment. It was Justice Breyer's second to last oral argument, and he did not disappoint. So he brought this all-Writz Act case to John the Tiger Man.

Do you think this was the Tiger King? I wondered. I wondered. Like, is he thinking about Joe from the Tiger King? I think he might have been. I, you know, inquiring minds went there. But here is Justice Breyer on John the Tiger Man. Oh, well, by the way, that order happens to ask the state to produce John the Tiger Man, who is the most dangerous prisoner they have ever

discovered. Because here, by the way, their complaint is, one, there is danger, and two, it costs money. Well, they'll pay the money, so it isn't going to cost them money. So they're left with danger. And by the way, depositions of death row inmates may in fact cost a lot of money. But you are saying that ordering a deposition of a death row inmate is not appealable. Or do you say it is appealable? Wow. Wow. Go out with a bang. Go out with a bang. You know, his colleagues were unsurprisingly bemused. Here is maybe even intrigued. Here is Justice Alito, picking up on those questions about John the Tiger Man. So if we return to the Tiger Man, so suppose that the order is to

transport the Tiger Man from one part, you know, all the way across the country for a period of treatment that's going to last for 45 days. And the district court says he's not to be shackled in a way that's going to make him miserable during this trip. That's not — you would say, well, that's, you can't appeal that? Anytime the state- Let me just stop you there. It is unreviewable because if Tiger Man escapes or kills somebody during his trip, there's no way that's going to be remedied at the end of the case, right? Note that during the first clip of this, you can hear Justice Thomas cracking up when- Of course you can.

I know. Because this is batshit. I want to know how many other justices thought Justice Breyer was riffing on Joe Exotic and Tiger King. Do you think that... I bet Justice Thomas watches the Tiger King. I bet he does. Like, I bet he thought it was funny. Does Justice Breyer though, or is just a kind of like vaguely ether aware? Justice Breyer definitely watched Tiger King during the pandemic. In between French movies and making pot roast. While the pot roast is in the oven,

right? He turns on a little Netflix. His clerks probably told him this was a thing and he would like want to, you know, know about this thing. So, yeah, it's there. I concur. I concur.

Very lightly garbled. Okay. That makes it make much more sense. It was always going to be slightly lost in translation. For true fans, they knew. They knew. The briar hive knew. Yes.

Okay. Fans, they knew. They knew. The briar hive knew. Yes. Okay, so let's pivot to Oklahoma versus Castro Huerta, which we also wanted to recap. So the issue in this case is whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country. In McGirt versus Oklahoma, as well as in some previous cases, the court has said states don't have presumptive authority. Under current federal law, they can opt into jurisdiction under certain conditions and under agreements with federal governments and with tribes. And not surprisingly, listeners, your favorite Indian country justice and mine, Neil M. Gorsuch, came prepared to slay. He brought big Virgo energy to this oral argument. So let's hear him. All right. So it's going to be the tribes. All right.

Fine. Then I would ask you, why would we not take into account in that balancing test you'd have us do the identity of the victim as going to tribal sovereignty? Given the history in this country of states abusing Indian victims in their courts. George Washington wrote letters about this at the outset of the nation's history. In the 1920s, Oklahoma systematically used its state courts to deprive Indians of their property when oil was discovered on their lands. There is a long history of this. Congress has provided as well a mechanism for tribes who wish to opt in to state concurrent jurisdiction in Public Law 280.

So that's available. We know that. They've chosen not to. Should that be something we consider? And then finally, two more things. We have the treaties, okay, which have been in existence and promising this tribe since before the Trail of Tears that they would not be subject to state jurisdiction precisely because the states were known to be their enemies. Does that count in your new Bracker balancing test, which we've never

heretofore applied in criminal law? And then finally, you say we have to worry about blood quantum when it comes to victims. Well, wouldn't that also be true when we have to deal with defendants? It's apparently not a worry there. I don't know why it would be a worry here. So there's a lot for you to chew on. I think there were four things in your question, Justice Gorsuch. At least. Let me start with those four and feel free to add others. So prepared. He came very prepared. And like, you know, I think in a lot of slash most arguments, he comes somewhat indignant with the side that he doesn't agree with. And a lot of the time,

at least some of the time, right, I feel like that indignancy is like misplaced because oftentimes like these cases are hard and, you know, there's competing evidence and you should like acknowledge with humility that, you know, we're all kind of grappling with this material and figuring things out. Here, however, I was down for it. The indignation was well-founded, but were you comfortable with how much fist pumping you were moved to do during this argument? I was like, why am I being moved to do that much fist pumping just because the indignancy and condescension

is there so much of the time that I just can't get into it when it's directed at... For me, it's just cognitive dissonance when he's actually righteous, you know? It's the same tone of like his ridiculous holding forth in other topics, but he's right here. I think part of his righteous indignation is that he wrote McGirt. Right. And he's defending McGirt. Yeah.

Like, I mean, this is like, show your work again some more. And it is like just pretty bold of, you know, they didn't grant on the overrule McGirt question, but that was certainly there. So it's a pretty bold ask. And for sure, like that hangs over the entire case. One thing that was a great development in the argument was that Justice Sotomayor asked a question about an article co-written by former strict scrutiny guest and This Land host Rebecca Nagel. She had just published it in The Atlantic, and it suggests that Oklahoma is really misrepresenting some of the figures on which they rely in the case. So let's play that clip now. That is not happening in the state of Oklahoma, and you don't have to take our word for that.

Counsel, but you have a state-specific problem. At some point, I want you to address where you get your figures from. And I will lay out, there's an article in The Atlantic that suggests that your figures are grossly exaggerated. And I want to give you an opportunity to address that. But put that question aside. There was a moment from this argument that I wanted to ask you all about. And it was a question slash comment, more of a comment from Justice Kagan. And I wanted to ask you all about. And it was a question slash comment, more of a comment from Justice Kagan. And I wanted to know whether you thought it was a compliment or a read. Why don't you wrap up quickly and Justice Kagan will,

Justice Kagan will have your question and then we'll move on to the next stage. I'm happy to take my turn in order. Go ahead. Great. Go ahead, Justice Kagan. I wanted to say one more thing in response to justice gorsuch but okay you'll find a way to fit it in i'm sure you know she's saying like i'm sure you'll find a way to answer the question like you want to answer and i was like is she saying that's a skilled advocate or is she saying like you're not going to answer my tough question anyways? I just, I wasn't sure.

Maybe it's both and. It could be both. I think she was, at least in part, genuinely offering a compliment. Like, I do think Kagan has been really, like, frank about the fact that she likes repeat players at the court. She likes skilled advocates who argue in the style to which the justices have become accustomed. She said this really directly to Jomis Kubik in a piece she wrote a few years ago called The Echo Chamber that was like, there are so few people arguing at the court, it's a problem. And Kagan was like, no, it's not, it's fine. It's good. We like this style of advocacy. And, you know, Shan McGann is an

extremely experienced advocate. So I thought she was genuinely saying, you'll get there. And you know what, like at the very end of a long answer, like he totally got us where he ended. So like, she was predictably correct. Like he managed to work in what he wanted to say to Gorsuch in this long response to Kagan. I think it was that was canon. That was canon Shan McGam of Paul Weiss, who's representing Oklahoma. Correct. More generally in the argument that were very strong, we know better than the tribes vibes from Justice Kavanaugh and Justice Alito, you know, both of those justices really wanted to press the argument. Well, why wouldn't it be better for the tribes if there was concurrent jurisdiction over cases involving Indian victims? More likely that either the

federal government or the states would prosecute. And speaking of humility, I would feel like maybe I should think twice before invoking, I know better than the tribes was good for tribal authority, given the historical resonance of those kinds of for tribal authority, like given the historical resonance of those kinds of claims. And again, given the experience, you know, that tribes have had in worlds where, you know, states had authority over certain issues. So yeah, I did not love that energy. But I think it's hard to know exactly how this case is going to come out because Justice Barrett, who is – We should remind everybody that McGirt was 5-4 with Ginsburg still on the court.

She's obviously been replaced by Barrett. And we don't know where she's standing. They're not identical questions, of course. But we don't know where she would have been on McGirt. And we don't know where she'll be here. And did she – she didn't say much that was particularly revealing. No, she did not. She did not.

Yeah. Let's shift into briefly recapping some of the opinions that we got. But I'm actually more interested in understanding what these opinions might mean for other opinions. But before we get to that, there was an opinion in Cummings v. Premier Rehab Keller. And this was a really interesting case about whether emotional distress damages are available under various anti-discrimination statutes, including the Rehabilitation Act and the Affordable Care Act. Those laws prohibit discrimination on the basis of disability. The litigants here, Jane Cummings, who is deaf and legally blind, asked the physical therapist services provider that she was using to supply an American Sign Language interpreter, which they declined to do.

She sued, saying that their failure to provide the ASL interpreter constituted discrimination on the basis of disability in violation of both statutes. She sought damages for emotional harm. The Supreme Court said that the statutes didn't allow her to get these emotional distress damages, and so her suit was all for naught. And basically, the reasoning was the court said that because these statutes are spending statutes, so these are statutes under which parties get federal funds, and this physical therapist service provider was a recipient of federal funds, so these statutes are spending statutes. So these are statutes under which parties get federal funds, and this physical therapist service provider was a recipient of federal funds. So these statutes in general provide parties with federal funds, and the parties agree to certain conditions attaching to those funds when they receive them. And so these statutes have to explicitly,

or at least more clearly, authorize particular kinds of damages here for emotional distress. And they didn't do so here, in part, the court said, because spending statutes are like contracts between the federal government and funding recipients, and you usually can't get emotional distress damages for violations of contract. Even though this decision involves violations of the Rehabilitation Act and the Affordable Care Act, the court's reasoning also seems to apply to emotional distress damages for violations of other spending clause statutes like Title VI's prohibition on race discrimination or Title IX's prohibition on sex discrimination. And you think about those statutes applied to schools and educational settings like sexual harassment

or racial harassment. Oftentimes, those kinds of cases involve emotional distress damages and the court is just taking the legs out from under them. So this is a broader sweep and a swipe against civil rights enforcement more generally, not just about disability. And this was a six to three decision that was written by the chief justice. So there was a sort of predictable ideological fracture. Yeah. And the predictable three justices in dissent. Breyer wrote the dissent for himself and justices Sotomayor and Kagan. So he wrote, the statutes before us seek to eradicate invidious discrimination. That purpose is clearly non-pecuniary. Discrimination based on race, color, national origin, sex, age, or disability is particularly likely to cause serious emotional

harm. And often, emotional injury is the primary, sometimes the only harm caused by discrimination, with pecuniary injury at most secondary. It's difficult to square the court's holding with the basic purposes that anti-discrimination laws seek to serve, that victims of intentional discrimination may sometimes suffer profound emotional injury without any attendant pecuniary harms. The court's decision leaves these victims without any remedy at all. You also had a very memorable line. Again, Breyer Hive wanted to flag this. Discrimination is not simply dollars and cents, hamburgers and movies. It is the humiliation, frustration, and embarrassment that a person must surely feel when

he is told that he is unacceptable as a member of the public because of his race or color, you know, kind of quoting what previous justices and like members of Congress have said. I think this is a breadcrumb for next term when they take up that 303 creative case versus Olenas, which is about the public accommodations law and religious liberty. Leaving a little gift for his colleagues in dissent. I'm assuming it'll be a dissent. I mean, I mean, hope springs eternal. I can't even say it eternal I can't even say

I can't even say Come on, girl Bye, bye, Kate I couldn't even get it out I think I'm with you I hope you are But sticking with this term, though, for a moment

in addition to what this case might tell us about the court's approach to future cases and emotional distress damages claims, there's a question of what the authorship of this case tells us about other cases that are currently pending on the court's docket. So Cummings, the case we just talked about, was argued in the December argument session. The court typically has seven argument sessions each year. And just by custom and practice, each justice typically writes one opinion per session before any other justice will write two opinions. So there were nine cases, meaning nine opinions, argued in the December sitting. The chief had one, which means he probably wouldn't have been assigned or assigned himself another, although there's always a chance something weird would happen and somebody ends up with two opinions and someone ends up with no opinions.

And that may just be because votes change after the initial post-argument vote. So that happens. Not all the time, but not never either. But – But, yeah. But December is a particularly important sitting. So, Melissa, why? So the December sitting was especially important because that was the sitting in which the Dobbs case, the abortion case, was argued.

That was the case that challenges Mississippi's HB 1510, which prohibits abortion at just 15 weeks. The fact the chief justice had the opinion in Cummings suggests that he did not assign himself the Dobbs opinion, which might suggest that either he didn't assign it to himself or maybe he wasn't in the majority, which would mean that then Justice Thomas was likely the senior justice in the majority, and he had the assigning privilege and could likely assign it to himself or perhaps to someone else. Someone who has a particular penchant for— Safe haven, ladies! Yes. someone else. Someone who has a particular penchant for... Safe haven, lady! Safe haven lady, girl boss.

Amy Coney Barrett. Okay, but while we're sort of reading the tea leaves in Sybil Trelawney fashion, it is worth noting that Justice Gorsuch had two opinions in November, and Justices Thomas and Barrett had zero. And that was a sitting in which Bruin versus NYSERPA, the New York guns case, is still outstanding. So one of them would be without opinions. And maybe that augurs in favor of one of them having Dobbs too.

I don't know. This is so gross and awful. Between Thomas and Barrett having Dobbs, is there any way to express a preference for that? Like, what – I guess Barrett because I know how bad Thomas' version would be and I guess there's, like, a degree of suspense about how bad Barrett's version would be. So I guess that's what I pick. Yeah. The devil we don't know. Exactly. You know, again, just to offer the necessary caveat, this, i.e. the fact that the chief had Cummings, doesn't necessarily mean the chief wouldn't end up with an opinion in Dobbs because, as Kate was saying, sometimes votes change after, you know, an initial conference or after opinions are circulated. But it is, I think, pretty good evidence that he wasn't initially assigned the opinion after the conference. There is no third way institutional

conclusion to this. Yeah. And I think, yeah, this brings us back to where we kind of ended our news segment, which is, did the chief justice manage to get a vote for not completely overruling, but just eviscerating Roe from one of his five conservative colleagues. And no, well, so I just want to offer some pieces of evidence for this thesis. I, I honestly don't know, my guess is it's still up in the air at this point at the court, because this is like a big decision. And my guess is, at least to some of them are probably making a show of being undecided. But the Wall Street Journal had what I view as like a meltdown in the op-ed pages talking about how Chief Justice Roberts, quote, may be trying to turn another justice.

And I don't turn. It's just wild. real echoes for me of 2012 when conservative media correctly predicted that the Chief Justice would uphold significantly the Affordable Care Act, and in 2020 when conservative media was also freaking out about Justice Gorsuch in the case about civil rights protections for LGBTQ individuals. And, you know, part of me wonders, like, which of the conservative justices is talking to the conservative media. But the other pieces of evidence I have for this theory is just how angry Justice Alito was at some of the arguments this week. I mean, we talked about the big Trollito energy. We didn't talk about Biden versus Texas, but we will next week.

He was so furious during that. Although the chief was, too. So there's, like, I don't – that doesn't, like, discount. I don't think either. That's true. If the chief was, like, I just, like, pulled this thing off, I feel like his energy would have been different in that Biden argument. That's true. But also Justice Kagan's, remember, like long exegesis about a justice changing their views. Yes.

You're saying in the Dickerson case you guys talked about. Yeah. Yeah, exactly. In the Miranda case. Yeah. And so – So you read this more optimistically. I read the opinion assignment as there's no way that the chief justice prevailed and that this obviously was assigned by Thomas. Well, so I read it as that was definitely true after the argument and at the initial conference.

But I'm reading these subsequent developments like the Wall Street Journal story in the last week as maybe there's something changed. Maybe there's some play in the joints. Exactly. Yeah. All right. So we did want to end with some court culture as we are awaiting the end of the term. This was the last oral argument session

in which our boy, Steve, our fellow, Cassandra, our mensch on the bench, participated in oral argument. And of course, we're talking about Justice Stephen Breyer. And it appears that we are not the only ones who were a little choked up or sad about, you know, the prospect of not having his energy at these oral arguments. Because at the close of the court's last argument in Castro Huerta, the Chief Justice acknowledged that it was Justice Breyer's last argument in very memorable and moving words, which we wanted to play here. And now, as many of you may know, Justice Breyer has announced his retirement from the court, effective when we rise for

the summer recess. That means that the oral argument we have just concluded is the last the court will hear with Justice Breyer on the bench. For 28 years, this has been his arena for remarks profound and moving, questions challenging and insightful, and hypotheticals downright silly. This sitting alone has brought us radioactive muskrats and John the Tiger Man. Now, at the appropriate time, we will, in accordance with tradition and practice, read and enter into the record an exchange of letters between the court and Justice Breyer marking his retirement. For now, we leave the courtroom with deep appreciation for the privilege of sharing this bench with him. Thank you.

The only thing that could have made this better is if Moira Rose came on and sang Oh Danny Boy after this. That would have been like, I mean, the Chief Justice is he is like in tears. He can't get this out. I mean, you know, I kind of want to make a joke about the Tin man having a heart, but I think it is, you know, a larger testament to just how much of a mensch Justice Breyer is that he could get. Or Stockholm syndrome and you're stuck with these people for forever. Well, I mean, if you're, look at who his new colleagues are and you're like, gosh, this is really making me miss Steve Breyer. You know, this Neil Gorsuch has been a real, like, thorn in my side. But that Justice

Breyer would provoke this level of emoting from the Chief Justice is I think like one of the best testaments you can get to just like how endearing Justice Breyer is. We salute you, Justice Breyer. And as always, we reiterate our invitation to join us on the pod for a special segment that only you could do. And let me just say the it was moving. And you know what else was like an amazing testament to Breyer's menschiness is the last couple of paragraphs of Leah's epic review of Justice Breyer's book, which basically says like, the book is pretty terrible. And yet Justice Breyer is still an unbelievable mensch. It was a great book review, Leah. Thank you.

And it was, it was a- Justice Breyer, if you want to come on the podcast, I'll discuss it with you. We can. I think I was worried. I was worried along the way that you were going to close off. The review was going to close the door to that prospect. But I actually think you landed the plane such that he might still come on. You did stick the landing, Leah.

I will say the best tweet about the book review was from Stephen Lee at the University of California, Irvine, who wrote in, I'm glad I wasn't the Stephen about whom this was directed. But there's so much affection and appreciation along with the panning. It's a really amazing accomplishment to make all that coexist. You did. Between critique and hagiography, very well done. Thank you. We should also note that Justice Breyer is not the only courthouse denizen who is retiring at the end of this term. You may not know him, but you definitely know his work. And that is courtroom artist Arthur Lean, who has also announced his retirement, this time after 45 years of sketching the members of the court and the litigants at

one first street. But wait, can I interrupt you for a second? You're calling him Arthur, but he goes by Art, which is like the greatest thing about the fact that he's a courtroom sketch artist. His name is Art. We should point that out. I was trying to give him his full name, but also, clerkly known as Art. Arthur Courtroom Art Lean is retiring. He began work as a courtroom artist

in 1976. And over the years, he has been the public's eyes in the court because obviously there are no cameras in federal courts. So he's been the one to give us glimpses of the justices at work. He's also been on hand for the trials of Paul Manafort. And he was the only courtroom artist allowed entry into the first military tribunal at Guantanamo. So he's had a really storied career, and you've definitely seen his work. Yeah, and I have to say, I have been behind him in press seats in the courtroom in previous arguments,

and it is, like, so mesmerizing to watch these shapes appear. Like, and I think he uses both pencil and charcoal, and then he later adds color with, like, watercolor. But it just, like, feels very special and magical and from another era. And like it's really sad to me that he's not going to be sketching from the courtroom anymore. It's like when you go to Disneyland and they do those cartoons of you and like with a really big head and a small body. Only better. Way artier.

Yeah, way artier. Much more arty. And he's not only a first-rate talent, he is highly adaptable. Because when the pandemic shuttered the Supreme Court building and arguments shifted to a conference call format, he persuaded advocates to send him photos of themselves arguing from home. And from those photos, he provided sketches of a pandemic court still at work. His last sketch coincided with Justice Breyer's last argument, a fitting end to two terrific careers at the court. Salute!

We salute both of you gentlemen. That's all we have time for today. Let's close it out. 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. Audio engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz, with digital support from Amelia Montooth.