Strict Scrutiny - The Legality of Presidents Doing Whatever They Want

Episode Date: January 15, 2024

Melissa, Kate, and Leah recap oral arguments in cases about the No Fly List, the confrontation clause, and what qualifies as a government taking. They also preview the cases the Supreme Court will hear this week about Chevron, the doctrine that gives federal agencies the authority to interpret statues. Plus, they recap the arguments in the DC Circuit in which Trump argues he's immune from criminal prosecution (and in which his lawyer suggests he could freely use SEAL team 6 to assassinate a political opponent).Read Leah's article with Dan Deacon, "The New Major Questions Doctrine" 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 Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. And on this episode, we're going to recap the arguments the court heard

last week before turning to some court culture, including the latest antics out of the Fifth Circuit, which truly can't stop, won't stop. We will also cover the oral arguments in the Trump immunity case from last week in the D.C. Circuit. And then next week, we're going to spend the lion's share of our time recapping the arguments in the cases challenging Chevron. First up are the recaps. And as Kate said, we had oral argument this week in a number of cases, including FBI versus FICRA. This is the case about whether courts can continue to hear challenges to the no-fly list when the government removes the plaintiff from the no-fly list after the plaintiff

filed suit challenging their inclusion on said no-fly list. So recall, the plaintiff here says he was placed on the no-fly list because of his connections to a mosque and was told that the government would take him off of the no-fly list if he became a government informant. And I have to say, it's not clear that the court is actually going to do what it normally does, which is totally mess something up here. It might actually maybe do the right thing. It might do okay. And that may well because this is the Biden administration maintaining the no-fly list, which in this case means that at least some of the Republican justices' partisan impulses may happen to align with the interests of justice, which would mean a win for FICRE. But whatever

the Republican appointees are going to do here, it's really the Democratic appointees who were on fire during this argument. Justice Sotomayor had a banger hypothetical that opened the argument and really captured the issues in this case and some of the key problems with the government's position. So let's play that clip here. Can I give you a hypothetical? He does a fundraiser for his mosque. He has no idea that the mosque is under suspicion. You put him on the no-fly list. You now give him this declaration that says,

we're not going to put you on the no-fly list for anything that's happened in the past. Tomorrow he holds another fundraiser for the same mosque. Can you put him back on the list under this declaration? So again, I would want to know more about exactly. There's nothing more. You put him on because he did a fundraiser for this mosque. Will this declaration stop you tomorrow from putting him on the list for doing a fundraiser for that mosque? I just think this hypothetical conveys the issue so clearly and so well because it reveals why we just don't know whether the plaintiff will be placed on the no-fly list again. If the government isn't willing to say anything about why they put this person on

the no-fly list in the first place, and if the plaintiff says it's because he attended a mosque, then we don't know if they'll put him back on the no-fly list if he does stuff that is perfectly, totally fine everyday stuff, like going to a particular mosque. Justice Kagan referenced Justice Sotomayor's hypothetical, also underscoring its significance to the case in this way. I mean, Mr. Joshi, you're arguing the merits of the case. You obviously think that you have good reasons for putting people on the list. And, you know, on the other hand, the suit, the whole gravamen of the complaint, is that you were not using good reasons, and we can't decide the merits of the case. I think that Justice Sotomayor's hypothetical is an extremely important one because it really asks,

what does this declaration commit you to? The declaration clearly says that you can't use any facts that you know of now. So any facts that have happened in the past cannot be used to relist Mr. Fikra. But the question that she's asking is, if he does the same kinds of things, if he meets with the same kinds of people, if he associates with the same kinds of organizations, can those same kinds of activities that put him on the list before put him on the list again? And I do think that you have to give a kind of yes or no answer to that question so that we can figure out what this declaration does and does not commit you to. And that intervention led to this response from the government, which really seemed to undermine the government's argument that the case was moot and the plaintiff wouldn't be placed on the no-fly

list again. So here it is. Yeah, so if you want a yes or no answer, my answer is yes, because... Guess what? Yes. Yes, you can put him back on for the same kinds of activities for the same kinds of yes. So just to make this clear, this undermines the government's case because it implies the government might put him back on the list for the same reasons they put him on the list in the first place. Reasons the plaintiff says are unjustified and just regular activities like attending a mosque or hanging out with friends and associates. But even leaving aside that they're ordinary events, the fact that the government cannot say conclusively that he will not be placed on the no-fly list for doing these things just seems to violate the very high bar that exists for the voluntary cessation doctrine. Yeah. And, you know, as some of the justices made clear,

the government can't responsibly commit to saying we would never place someone on the no-fly list in the future, depending on what they did if circumstances changed. But again, that just seems to take us right back to the high bar for voluntary cessation. And it seemed to me like there is this asymmetry to putting someone on or off the no-fly list that I think this might be getting at. So the government took him off the list. And of course, people would think the government won't take someone off the list if the government views might be getting at. So the government took him off the list. And of course, people would think the government won't take someone off the list if the government views them as a threat. That is, the government wouldn't necessarily moot a case just because someone challenged the no-fly list if they think that person is a threat. But that doesn't mean

the government won't put someone on the list or back on the list if there isn't a good reason to put them on the list. That is, it's not clear they wouldn't put someone on the list or back on the list if there isn't a good reason to put them on the list. That is, it's not clear they wouldn't put someone on the list who a court would say doesn't present a threat or, you know, doesn't belong on the terrorist watch list. This is all to say that this case presented what someone like Derrick Bell might call interest convergence, which is to say that it provided the court's conservatives with an opportunity to own the Biden administration while also vindicating. Is that what Derrick Bell meant by interest convergence? Actually, yes.

I think so. Gives the courts conservatives an opportunity to own the Biden administration while also providing the courts liberals with a rare opportunity to vindicate the rights of an underrepresented minority. And because that interest convergence was happening, it seemed that naturally, Justice Samuel Alito would get a little squirrely and try to suggest a different way for the plaintiff here to lose by suggesting, wait for it, that he doesn't have standing. So, Justice, I have to say, this is, you know, I go through the different Alito nicknames, but this is an oldie but a goodie. Peak Alito proposing a different way for a plaintiff and

under a civil rights plaintiff and underrepresented minority or a criminal defendant to lose if it looks like the court is going to say they will win. Yeah, it's not Trollito. It's not. It is just Peek. It is him at his most Alito. Peek Alito. And Justice Jackson went at this suggestion that the plaintiff didn't have standing hard in subsequent questioning. You know, it's clear the plaintiff had standing when they filed the case, when they were on the list. So she had this exchange with the federal government's lawyer. All right, let me ask you about the standing question real quick. Does the government dispute that Mr. Fickrey had standing at the time that he filed his suit in 2013? No.

All right. So he did. And don't we ordinarily assess standing at the time the person brings the lawsuit. I had to say that exchange made me think that, you know, taking some distance from colleagues over this winter holiday has not necessarily improved the Alito-Jackson relations. I don't know, just the sense I got. I don't know, Kate. I think they might be getting a summer share together at Long Beach Island.

I think this bodes well. Well, or eat spring break as sooner, yeah, who knows. South Padre Island. But, you know, the way they talk to each other through advocates suggested to me that that is not that likely to happen. And kind of more generally, while it seemed like the case went well for the plaintiff, at one point, Justice Kavanaugh told the government that he was sympathetic to their argument, even though he actually didn't sound like it during the questions he was posing. At other points, both Justice Kagan and Justice Gorsuch suggested that something like a SCIF, that is a sensitive compartmented information facility for looking at classified documents, might be a way for the court to see why the government put the plaintiff on the list, and when or under what circumstances they might do so again to really assess the likelihood of

recurrence. But the government not surprisingly resisted this suggestion. But in general, as we started with, the Democratic appointees and Justice Gorsuch did seem very much to be with the respondent. And I think the big question is, is there a fifth vote for the respondent? As Melissa suggested at the outset, it does feel to me like, yes, I'm just not totally sure of where that vote or votes are coming from. It comes from the free exercise crowd, for sure, because this guy apparently is put on the list for going to a mosque. We're very protective of religious freedom and discrimination against religious minorities. Yeah, for all.

For all. For all. This is going to be like, when we start talking about it, it seems it's only for Christian evangelicals who are going to say, ah, what about Ficre? And we're going to be like, you're right. You got us. You owned us.

Owned. You owned us. Owned. You owned us. The court also heard oral arguments in Sheets v. County of El Dorado, which we previewed on our last episode. This is the case about whether permit exactions can be challenged as taking. So here, California law requires property developers to pay a fee that the legislature says represents the increased burdens on public roads from development projects. And the court seems inclined to resolve only the narrowest possible version of this question, which is also now a question on which the parties agree. And that question is if these exactions can be challenged as takings when they are enacted by the legislature into law. Both the county and the plaintiff's lawyers agree that the exactions aren't immune from

challenge for the reason the court below said they were, namely because they were enacted into law. Justice Kagan and Justice Gorsuch both suggested that there was, quote, radical agreement on this issue, and the county's lawyer conceded that there was. So let's play that clip. Ms. McGrath, I want to follow up on Justice Gorsuch's idea of radical agreement. And I want to give you, suggest what it is that there is radical agreement on and what it is that there's not radical agreement on and see if you agree with me. So what there is radical agreement on is that you don't get a pass from unconstitutional conditions analysis just because you've passed generally applicable legislation. And that's, of course, true in unconstitutional conditions analysis generally, and so too it's true of

unconstitutional conditions analysis in the property area. If there has been a taking and that taking is being leveraged in the permitting process by generally applicable legislation, there is no pass just because that's the mechanism that's being used. So first, let me ask you if you agree with that. I agree. OK. that's being used. So first, let me ask you if you agree with that. I agree. Okay. But what there wasn't radical agreement on were all of the other issues in the case, which Justice Gorsuch described at one point as a can of worms. And these issues are important to whether the permit exaction can be challenged, and they will matter to whether this permit

exaction is unconstitutional. We will lay out what those other issues are, but it actually seems like the court is not going to wade into those issues or resolve them. So one issue is whether this is a taking or is instead a tax or a use fee because of how it's structured and what it's for. Justice Gorsuch suggested that this was an interesting question, and Justice Jackson explained why it's an important question. So that's why I asked you, why is it unconstitutional for them to impose a fee, a user fee, a toll. Your argument is suggesting that every toll is a taking, that every property tax is a taking. As Justice Jackson is suggesting, the plaintiff's theory here could open up a broad swath of laws and regulations to some kind of

reasonableness review in the federal courts. And maybe that's undesirable because the federal courts are not necessarily so reasonable right now. And I have to say, she's one sharp cookie here. Like, this is definitely a good observation. And don't just take my word for it. Listen to what this guy had to say. I made a commitment to you to nominate the first black woman, and Jim's already talked about it, on the Supreme Court. And by the way, she's smarter than the rest of these guys. Her name is Patanjali Brown Jackson. But guess what? She knows what she's doing. Accurate duck gif, POTUS. He was not wrong. So another remaining issue is whether legislatively enacted schemes that lump people into broader categories get the same kind of proportionality analysis as individual ad hoc discretionary permit exactions.

Here's Justice Kagan explaining that. from what Nolan-Dolan analysis looks like, just because Nolan and Dolan were focused on individual parcels, individual property owners, and this is a general scheme, and it would be very difficult to apply Nolan and Dolan analysis literally to a general scheme, so that there might be ways in which Nolan-Dolan analysis becomes something that, you know, really looks different in application. And I think Mr. Beard says, no, not really. And you say, yes, really. Is that correct? That's also correct. But it seems that the court might leave these cans of worms for another day, as Justice Gorsuch suggested here. I understand that. But that's all. That's the first can of worms, which we're not getting. I mean,

we could say that this is a tax and that's a different, but this is the second can of worms that we're talking about now, which is legislation versus specific. And I guess I'm not sure where we draw that line. It seems the justices are just too tired from deciding whether there will be accountability for January 6th and whether hospitals can provide abortions necessary to stabilize pregnant women who are dying and whether domestic abusers can be disarmed and whether the administrative state continue to exist. And you get the picture. You sound so shrill. How about you cut them some slack? They're trying. They're working very hard it's it's like ryan gosling saying in i'm just ken i'm just ken and that's enough i'm great at doing stuff i mean

all right so we will see if they can muster the energy to say much of anything in this case um as leah just alluded to they have please don't say anything. Please don't say anything. It's not... Keep them closed. Keep that can opener in your cupboard. Keep that can of worms. Take it on a private jet to Alaska. Catch some fish. Catch some salmon.

Excellent callback, Melissa, as always. Okay, so let's move on to Arizona v. Smith, another case the court heard argued last week, and that is the important confrontation clause about whether and when a witness for the state can rely on the testimony of another expert. Here, the petitioner, who's supported by the federal government, argues that the state's witness relied on a non-testifying expert's testimony for what that expert testimony actually said. That is, they just essentially read it into evidence and acted as if the testimony was true, even though the person who authored the actual testimony was not on the stand and thus could not be cross-examined. So the court in Williams, as we mentioned in our last episode, had narrowly rejected the idea that the state could do this and just, again, have a witness

like smuggling the testimony of someone else. But the court said witnesses could rely on non-testifying experts' materials to form an expert opinion, but not to assert the non-testifying experts' materials were themselves true. We also noted that in Williams, Justice Thomas continued to press his, how shall I say it, idiosyncratic views on the confrontation clause, which maintained that the confrontation clause was not implicated by sufficiently informal statements. So the court's existing confrontation clause jurisprudence says that evidence implicates the Confrontation Clause based on the primary purpose of the testimony and evidence.

And because we were truly living in what seems to be the absolute worst of times, some justices seem to be saying, let's just say that the law is what Justice Thomas says it is. So real Fifth Circuit energy here. And it all started with a clip from, you guessed it, Coach Kavanaugh. On the question of what is testimonial, I guess one question I have, which goes back a ways, which is what tests to apply. And so I just have a question. Why shouldn't we adopt the test that Justice Thomas has been advocating in his opinions since White and under Justice Thomas's test, under that test about formality and solemnity? Why don't you lose here? It is quite interesting that they are also occupying this fantasy SCOTUS universe. Like the Fifth Circuit pretends the Supreme Court is Robert Bork and Clarence Thomas and Brett Kavanaugh is like, yeah, yeah, those guys are on to something. I mean, they're the fantasy basketball team, fantasy SCOTUS.

Seems right. Exactly. The other justices on the actual Supreme Court, the real one, not the fantasy one, they were not amused by this. So Justice Sotomayor suggested, why change the law here? There's no reason when the petitioner that is the defendant prevails under either approach. So here she is. In this report, this is very close to Bullcoming, isn't it? And not to Williams. Williams, the report wasn't signed, wasn't admitted into evidence, nothing else, correct? That's correct. Here, like in Bullcoming, which Justice Thomas signed on to, it was signed, even though it wasn't an affidavit in its traditional sense.

The report was signed, even though it wasn't an affidavit in its traditional sense. The report was signed. That's correct. And then when the state's lawyer got up, both Justice Sotomayor and Justice Kagan just went 9-1-1, we'd like to do a murder on him, hammering him on the fact that he hadn't even made this argument to the courts below and therefore had forfeited it and the Supreme Court should not review it. Here is Justice Sotomayor. Counsel, can I go back to one point? And that was your argument that this is non-testimonial. The government says that's not unclear. And to be frank with you, I don't see it argued anywhere below and anywhere at trial, actually. You didn't, I don't see it argued anywhere below and anywhere at trial, actually. You didn't – I don't see it anywhere in your cert stage briefs in the courts below. I see it in your red brief, and you argue it here, but you sort of have a footnote on that argument, And that's all. I don't know of any time that we've ever addressed a question that wasn't raised in the cert brief in opposition here, wasn't raised by courts below,

was raised in a footnote at best in the red brief. Isn't the entire premise of the question before us that the information was testimonial? And here is Justice Sotomayor tag-teaming with Justice Kagan on the same. Have we ever had a case where a mere citation preserves such a consequential argument as overturning precedent? Where did you point out that all components of this report were not testimonial or testimonial? And candidly, Your Honor, we didn't further develop the argument in the Arizona Court of Appeals. Okay.

So now come here. Or in the trial court. Am I right? No. I mean, I don't think that, there was any reason to discuss it in the trial court, given that the trial court's ruling was what it was on the other question. Yeah. trial court, given that the trial court's ruling was what it was on the other question. Yeah, I mean, but in both the Arizona courts, and then also in your, in your, the filing that you filed in the Arizona Supreme Court, although they never took the case. But in all these filings,

everything was about the truth of the matter asserted. That was really satisfying. I mean, this sort of like, then there was kind of pathetic attempt to just be like, well, there was one citation in all the pages to the concurrence. And they're like, I'm sorry. And that preserves this argument. How it was. Yeah, it was that was they were they were they were just like really on fire. I mean, it was so much girl power that seemed like even Justice Barrett was like, can I get in on this guy? So she did say to the lawyer, your state didn't ask us to overrule our prior cases, which seemed like an important intervention to make. Right. You know, some predictions, it seems like we are on course for a narrow win for the petitioner who is the defendant.

And that will say some of the stuff that the testifying expert relied on was testimonial and the testifying expert used it impermissibly. That is just saying it was true. Some justices might write separately to suggest they're open to revamping the court's confrontation clause jurisprudence entirely, but might not do so in this actual case. That's actually a really good point. As you said, Leah, it seems like the petitioner defendant might win under either scenario. So maybe you don't even have to take this case, but it does provide those who are interested in rewriting the confrontation to law's jurisprudence with an opportunity to issue an invitation to those who would prefer a different orientation. Indeed.

So we have a lot of court culture to cover. So we are just going to briefly mention a pair of cases the court will hear argued this week, because we do want them to remain very high on everyone's radar. And the next week, we're going to spend a lot of time talking about the oral arguments. So those two cases are the two cases about the future of a 40-year-old precedent, Chevron, that in essence gives agencies the lead role in interpreting ambiguous statutes. Toppling Chevron has been very high on the conservative legal movement's wish list for a very long time, and they're very close at this point to being able to check that item off the list, along with reinstituting forced pregnancy and eviscerating firearms regulations. The conservative legal movement is very hostile to regulation, which means hostility to agencies and agency power.

And Chevron has long been understood to give agencies power, the power to fill in gaps when Congress legislates, as it often does in broad or general or ambiguous terms. But this effort to topple Chevron would strip that power from agencies and instead hand it to this hyper-conservative Supreme Court, which would clearly mean less regulation, less robust regulation, less meaningful regulation for all of us to live under. So we talked about the specific statutory scheme at issue over the summer after the court granted cert in one of the two cases that will be argued this week, Loper Bright versus Raimondo, the court subsequently added to its docket the chef's kiss perfectly named Relentless versus Department of Commerce.

The Loving versus Virginia award goes to the parties behind Relentless versus Department of Commerce. Exactly. Good work. And they likely took Relentless because Justice Jackson is recused in Loper Brights, and she was originally on the D.C. Circuit panel that heard arguments in the case. And Relentless is a case- Wait, or did they take it because they wanted the name? Because they were like, it doesn't matter, we already have a case. First Circuit so the full court can participate in the case and the court will be hearing the cases separately, but will presumably decide them together, just as it did in the affirmative action cases last term out of Harvard and UNC when Justice Jackson recused in the Harvard case. At the center of both cases is a statute authorizing a federal agency, the National Marines Fishery Service, to require commercial fishing vessels to, quote, carry federal observers on board ships. And the question is, who bears the cost of these observers? The statute doesn't exactly say who should bear the cost of the observer, but the agency has said that in some

circumstances, the owner of the boat where the observer is traveling is the one to pay for the observer's services. The plaintiffs have two asks here. The first, which is enormous, is that the court overrule Chevron. But the more narrow ask is that where there is a statutory scheme that grants some powers to the agency, what the petition calls, quote,

controversial powers, explicitly under some circumstances, that grant would negate a finding of ambiguity about whether those same powers exist in other circumstances. So this narrower route would basically entail limiting the force of Chevron, that is limiting the circumstances in which Chevron would apply by limiting the circumstances in which the statute is quote unquote ambiguous, but not actually overruling Chevron outright. So again, as we have already said,

we're going to save most of our commentary on the case for after the arguments, but I just wanted to flag one thing now, which is even if Paul Clement and Roman Martinez or whoever, I'm actually not sure who's arguing relentless, although he is on the brief, but the parties arguing against Chevron may make a persuasive case that this regulation is unjust

or even a bad idea. That's actually not what's at stake here. This case is about much, much more than this regulation. It is about everything from food and drug safety and efficacy to how overtime pay gets calculated to the safe storage of literal nuclear waste. And I think it's really important to not lose sight of that as we go into the arguments this week. All of this is true. But again, most of this is going to be filtered through a libertarian lens of my freedom, right? Like my freedom to take my boat out and fish the F out of all of the water. I mean, like, this is a case that's about sustainability as much as it is about regulation. Like the reason why the observer is on board

is to prevent overfishing in sensitive areas where populations of fish could be susceptible to being overly depleted. And that's why they have the monitors. But instead, it's all being presented as this assault on family fisheries when it's actually an assault on big commercial fisheries. So there's a lot of Lochner energy here. I mean, Lochner, too, was about big baking conglomerates like Nabisco, but instead it was sort of filtered through the lens of Joseph Lochner and his Utica Bakery. Absolutely. And you made the predictions about the, like, liberty vibe that is going to be present in the argument.

I want to suggest two kind of predictions. One is, you remember the major questions argument where the Chief Justice and Sam Alito insisted on the Solicitor General answering the question about whether student debt relief was fair? I just feel like we are veering toward some sort of weird temper tantrum by one of the Republican appointees demanding to know why it is fair to do this to small businessmen and fisheries and invoking CODA-esque facts. I feel like that's going to happen. And then second is the limitation that these groups are proposing on Chevron is, to my mind, just like a re-articulation of the major questions doctrine. This idea that you can't do something controversial, aka something that Republicans don't like, that means it is presumptively illegal is just nuts. But again, like once you open that door in the major questions case, like, why not just go the full however many yards? I know football since I teach at the school that

won a national championship. So that was my effort to- I can't believe it took you like half the show to work that in. Yeah, it took you a long time to get to that. I was expecting it a lot earlier. That's why I was late. That was great. We had a text exchange on Monday night and I was like, Leah usually goes to bed early and it was 11 o'clock and Leah wrote back immediately. And I was like, wait, what? Oh, that's where Leah's at.

Yeah, Michigan was out there winning. That was quite a night. We were actually very happy for you and our household, Leah. We're glad for Michigan. Thank you. I was going to say that there's a really good article published by two professors at the University of Michigan that talks about how the major questions doctrine basically allows conservatives and the conservative wing of the court to gin up controversies so that they can call things major questions. Like, do you know, were there your colleagues who wrote that, Leah? So it was me. Oh, it you know, were there your colleagues who wrote that, Leah? So it was me.

Oh, it's you. Hi. It's me. Hi. Yeah. And it's me. Hi. I'm the problem. It's me in the Virginia Law Review with Dan Deacon, the new major questions doctor. And if listeners would like to check it out. It is indeed an excellent article. And I don't know if there is a follow on in the works. But what you were just saying, Leah, made me think, you know, there's no plausible way to suggest that this little fishing regulation is a major question as they have defined it. So instead, they have sort of pivoted to not the bigness, but the controversialness, which is one of the things that indicia that you guys identify in that article as being part of major, but also they say it's, you know, the price tag is high

and things like that. And those are very hard to defend in the context of this very small regulation. So they may be just recasting it in a way that allows them to use the same energy with respect to every single regulation. So excellent. What could go wrong? I like your use of recasting. That was like good fishing parlance. Yeah. Did you do that on purpose?

Thanks. I actually didn't. And you know what? I have to say, Justice Ginsburg does that a lot, uses a lot of phishing puns in her Yates opinion, the undersized grouper document destruction case. And I don't love it there. So I feel like one has to be careful with one's nautical and phishing puns in this context.

Right. We have a real time. You can just do it much better than I can. So yeah, we're good. But they do, the court does love that. So I'm a little, I'm a little worried that we're gonna have a lot of, depending on who has what opinions in this case, we may see more of that here, although with way, way higher stakes. All right, let's shift gears from nautical by nature to actual naughty by nature. The DC Circuit heard oral argument in the case where Donald Trump is arguing that he is immune from criminal prosecution and where to start, where to start.

So first of all, this case arises out of January 6th. Former President Trump is arguing that he is immune from prosecution for the events arising out of January 6th because either A, the President of the United States cannot be prosecuted for stuff he does in office or stuff that he does pursuant to his official duties, or unless he has actually been impeached and convicted for doing those things. So these are some of the various arguments being bandied about in the DC Circuit during the January 9th oral argument. The really big explosive moment, if you can call something explosive at the very decorous DC Circuit, was this exchange between Judge Florence Pan and Donald Trump's lawyer, where the lawyer appeared to concede that, well, you know what,

I'm not going to spoil it for you. Let's just hear it. I asked you a yes or no question. Could a president who ordered SEAL Team 6 to assassinate a political rival who was not impeached, would he be subject to criminal prosecution? If he were impeached and convicted first. Yes, that is Donald Trump's actual factual lawyer saying that Donald Trump would be immune from prosecution if he used the military seal team six to assassinate a political rival. Unless, of course, he had been impeached in the House and convicted in the Senate for doing so.

That's the only way in which he might be subject to prosecution for using military forces to assassinate a political rival. And I have to say, like, if he is using military forces to assassinate political rivals, do you think the House and Senate is going to impeach and convict him? Like there might arguably be a little bit of a deterrent there for that particular mechanism. But anyways, when you think about it, like this claim by his lawyer is actually not so far removed from what Trump himself had floated a few years back. They say, I have the most loyal people. Did you ever see that? Where I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn't lose any voters. Okay. It's like incredible.

And actually, you know, it wasn't just the Trump clip. It was that same clip basically appeared in the argument in the second circuit. And I remember because I was in the overflow room in the Trump versus Vance case, the case about access to the financial records of Donald Trump in the possession of his financial accounting firm. And Will Consovoy, who was doing the argument in the second circuit, basically said something not so different from the argument in this case, which was, you know, there it was a question. There were questions about prosecuting a sitting president, which wasn't at issue anyway. But those were what the questions were sort of trying to probe.

They basically said, yeah, there's just nothing one can do, even if the president shoots someone on Fifth Avenue, because that was what was in the hypo. So, you know, at least they have been consistent. Well, it had real Frost-Nixon energy. I mean, like it was in that interview with Frost where Richard Nixon said it's not illegal if the president does it. And basically Donald Trump has taken that to the bank. I mean, Richard Nixon walked so Donald Trump could run. This is now his lawyer's litigating position. And Judge Pan reiterated it again, just because it is so outlandish. I've asked you a series of hypotheticals about criminal actions that could be taken

by a president and could be considered official acts. And I've asked you, would such a president be subject to criminal prosecution if he's not impeached or convicted? And your answer, your yes or no answer is no. I believe I said qualified yes if he's impeached or convicted first. My question was, okay, so he's not impeached or convicted. Let's put that aside. You're saying a president could sell pardons, could sell military secrets, could order SEAL Team 6 to assassinate a political rival. So this kind of needs to be understood both in the specific context of this case, which of course involves attempts to interfere with the peaceful transfer of power, including

threatening harm to political officials who participated in the peaceful transition of power. That was what the calls to hang Mike Pence were about. And it should also be understood in light of reporting about the rising levels of political violence. On the last episode, we mentioned the swatting of Judge Chutkin and the main Secretary of State, as well as the man firing on the Colorado Supreme Court and taking a guard hostage. Since we recorded, we have learned that Jack Smith himself was the victim of a swatting attempt back in December. And just last week, there was also reporting about a bomb threat called into the home of Judge Engeron, who's presiding over the civil fraud trial in New York City. So none of this is abstract. It's all real. The Washington Post also did a story detailing

rising threats against political officials, including against the Wisconsin Supreme Court after that court rejected efforts to overturn the results of the 2020 election in Wisconsin. And the piece quotes Justice Jill Karofsky as saying, quote, I believe people when they say that they want to hurt us or kill us. I don't think they're idle threats, end quote. And again, these threats have continued since then. So this is not hyperbolic or hypothetical. This is actually happening. Okay, so back to the Trump arguments in the DC Circuit. On the specific legal arguments, Judge Pan made clear that since Trump was conceding that presidents can be impeached

in some circumstances, the only issue in this case is whether there can be prosecution before impeachment and conviction. So let's play that clip here. Given that you're conceding that presidents can be criminally prosecuted under certain circumstances, doesn't that narrow the issues before us to can a president be impeached? I'm sorry, can a president be prosecuted without first being impeached and convicted? All of your other arguments seem to fall away. Your separation of powers arguments fall away. Your policy arguments fall away if you concede that a president can be criminally prosecuted under some circumstances. And, you know, once again, just to underscore, the big explosive,

if you will, news out of this argument was the shocking concession by Donald Trump's lawyer. It was so shocking the government lawyer came back to it, you know, at the end of the case. And frankly, as I think Judge Pan's hypothetical described, I mean, what kind of world are we living in if, as I understood my friend on the other side to say here, a president orders his SEAL team to assassinate a political rival and resigns, for example, before an impeachment, not a criminal act. President sells a pardon, resigns, or is not impeached, not a crime. I think that is extraordinarily frightening future. I want to just take a minute to talk about this kind of question of impeachment.

There was, I thought, a real and significant shift in the arguments made by the Trump team. They initially were just making these really broad, absolutist arguments. A former president can never be criminally prosecuted for things he did while president, so long as they were related in some fashion to official duties. So an enormously broad argument. Basically, the civil immunity that has been found with respect to former presidents should apply full force in the criminal context, not something a court has ever accepted, and a very aggressive argument. But actually, the argument did shift to suggest, actually, it is possible to criminally prosecute a former president for things they did as president. They just have to have been impeached and convicted first. And the basis for that argument is what's known as the Impeachment Judgment Clause in the Constitution.

And briefly what that clause says is, Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office under the United States, but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. Basically, the clause is about limiting the potential punishments that impeachment can carry. So all impeachment can do to you on its own is remove you from office and disqualify you from future office holding. And the reason this is in the Constitution, history is pretty clear, is that in England, all kinds of horrible punishments, including literal death, could attach to impeachment and conviction. And in the United States, we were taking a more humane approach. So limited punishment can attach to impeachment, but the

constitution makes clear you can still be subject to ordinary criminal punishment. But Trump somehow sees in this language, the negative inference that not only is it okay to prosecute someone after they've been impeached and convicted, it is only okay to prosecute someone after they've been impeached and convicted. That argument is a textualute someone after they've been impeached and convicted. That argument is a textual. That's because text is for losers, Kate, right? He's thinking like big thoughts, big thoughts. It is. This is galaxy stuff. In addition to the text and history as obstacles, there's, I think, an enormous practical problem, which is that presumably would mean that not just presidents, but all officers who can be, you know, subject to impeachment can be prosecuted. I mean, because they're all subject to the same impeachment judgment clause, like all that can happen to them is they get fired, but then they can be criminally prosecuted if they did crimes.

And there have been over the years, many, many federal officials who have been prosecuted for various kinds of offenses, corruption, bribery, things like that. Most of them were not impeached first. Does Trump think that all of those convictions were unlawful because they weren't impeached first? I mean, I guess so, but that's not an argument I don't think has ever been made or entertained seriously. And if that's what they're going to go to the Supreme Court with, I actually feel pretty good about Jack Smith's chances. Well, yeah, I mean, I felt good about Jack Smith's chances because rejecting these insane immunity arguments buys the court capital to do all of the other insane things they're going to do this term. And so there was no, anyways, that's just kind of why I thought about that. And it

seems like at least this DC Circuit panel seems like it is headed for a, I think, likely unanimous ruling against Trump. We'll see how quickly it manages to do that. So I agree with you that if this got to the Supreme Court, there would definitely be a ruling in which the court gets to don democracy drag so that it can later go on and issue a bunch of opinions that make democracy even harder. So I think that's right. Democracy dragged to drag democracy. But I do think the fact that we are already having this oral argument in the DC circuit is a tactical victory for Donald Trump, because there are only a couple of routes going forward. Like, you know, this is a delay. So, you know, we will, we had this argument on January 9th. I don't know when we'll get a

decision. I assume it'll be relatively quickly, But the decisions could go in a number of different directions. And one option that they seem to be bandying about was remanding this back to Judge Chuckkin to make a decision about whether or not these acts were within the scope or the orbit of the president's official duties or not, because that's not something that she decided in the first instance in her ruling below. So that could be remanded. But didn't you think Judge Henderson was interested in that? Did you hear a second vote for that? Well, I mean, but it could happen.

I mean, it could be a very clean – It's certainly not impossible. It's not impossible. It could go back to Judge Chuck Kinn, and then it could go up to the D.C. Circuit again. Any decision of the D.C. Circuit might be one that could be then revamped for an en banc hearing by the entire D.C. circuit, and from there could go to the court, which then would have to spend some time deciding if they wanted to review it. So either way, this is a lot of time being eaten up. And there is a March 4th start time for this trial.

And it just feels like we're getting farther and farther away from that March 4th deadline. And that's a victory for Donald Trump. Full stop. Agreed. At the end of last year, several courts of appeals were making what we said was a strong play to be America's worst court of appeals, at least for voting rights. But the Fifth Circuit did not take these upstart efforts too lightly. They decided to take one final stand. And I think this final stand really sealed the Fifth Circuit's victory. It is truly America's worst court of appeals,

especially for voting rights. So we wanted to acknowledge this quote unquote victory. So this race was sealed when in an en banc decision, the full Fifth Circuit stayed a panel opinion of the Fifth Circuit and halted a redistricting remedy for Galveston, Texas. So why did the court say that the panel decision was no good? Well, because the full court wants to revisit its precedents, allowing, quote, majority coalition district claims to give rise to majority minority districts under the Voting Rights Act. Majority coalition districts are where groups of different racial minorities say their collective political power has been diluted and that the state can and should put them into a single district so that they can elect the candidate of their choice in

a majority minority district. And the Fifth Circuit needs to change that law in order to make it harder to protect voting rights, and they want to do so so badly. They are going to allow Texas to use a map that is illegal under current law. That is what the U.S. Supreme Court also did in Allen v. Milligan, and it is what the Fifth Circuit did at the end of the year in Galveston, Texas. Well, their shadow decision on Allen v. Milligan, not their later, you know, woke decision on Allen v. Milligan, just to be clear. Exactly. The U.S. Supreme Court declined to do anything about that en banc Fifth Circuit decision. Justice Kagan wrote a dissent for the three Democratic appointees, saying, quote, in imposing a different map,

acknowledged to violate current law on the theory that the circuit might someday change that law, the Court of Appeals went far beyond its proper authority, end quote. The Fifth Circuit further clinched its title as worst court of appeals in America, in light of a separate writing by Judge Ho in a hostile work environment case. Judge Ho concurred in order ostensibly to, quote, just ask a question. We're just asking questions here. There are no dumb questions. Wait for the question. Well, just wait, because the question he wanted to pose is, is the very term diversity itself discrimination? I think I know the answer. No, folks, that's actually not a joke.

Judge Ho said, quote, I write separately to highlight plaintiff's contention that the use of the term diversity may be evidence of his employer's discriminatory intent. Cases like these reflect the growing concern that diversity has increasingly become a code word for discrimination, end quote. And to raise this question, Judge Ho cited fellow thought leaders Bari Weiss and Andrew Sullivan. going to go into a Justice Clarence Thomas opinion related to the Thomas Jefferson High School case that is pending about whether or not merely thinking about diversity and how you

structure your admissions protocols is in fact a violation of either the Constitution or Title VI. Or it's going to go into a separate writing in Mildred versus City of St. Louis about employment transfers and whether a separate showing of adversity is required in Title VII claims. So lots of possibilities here. Why not both? Why not both? You don't have to choose. You're asking dumb questions again, Leah. Why choose? Might be. Can we get a separate question? Is Judge Ho auditioning for anything? You know, I think he's thinking about if in 2024, Donald Trump were to win the presidency, I think there is a pretty good chance either or both Justice Thomas and Justice Alito potentially resign. chance both of them would choose to retire and allow a Republican to fill their seat. In which case, there is no doubt that the next Republican president would appoint the craziest, youngest, most Matthew Kazmierk-esque judge that they can find, who is out to do nothing more than own the

libs for the next 30 years and create a majority and supermajority to do that for the next 30 years. I also think in the event that there is a Republican president, and I think the fact that we're not talking about the upcoming presidential election as another moment to reshape this court is absolutely bonkers and batshit to me, but it is an opportunity to reshape the court and make this conservative supermajority last even longer. I think if there is a Republican president, both Justices Alito and Thomas will step down. And for Justice Thomas's seat in particular, there will be enormous pressure to continue the project of, quote unquote, diversifying the court by adding

an Asian American justice. And I think this is why Justice Jim Ho, or, oh God, did I speak? Oh, Melissa, stop manifesting. Stop manifesting. I think that is why Judge Jim Ho is literally auditioning. But will the discussions of diversity around his potential nomination

make his head explode? Well, they will be illegal evidence of discrimination. I mean, it's weird. It's weird. He'll have to arrest himself. And the Republican president who's trying to appoint him.

Citizens arrest. I think it'll all be fine as long as Donald Trump doesn't go off and say, it is my goal to nominate the first Asian American justice to the court. Like, I think if you just do it,

and you know, that will be fine. And Ilya Shapiro will be okay with it. Well, that's what matters. The Fifth Circuit truly can't stop, won't stop. They came out with another banger this week, setting aside the Biden administration's rules regarding dishwashers and clothes washers by saying that more energy efficient machines just don't work. That is actually the court's key reasoning, quote, DOE's efficiency standards likely do the opposite. They make Americans use more energy and more water. This suit was brought by who else? Some Republican led states, including Texas, Louisiana, and Alabama,

who said their employees didn't want to use energy-efficient machines. A regulated industry group had asked the Trump administration to exempt them from energy regulations. The Trump administration did that. But then the Biden administration attempted to subject the regulated industries, including dishwashers and washing machines with a cycle under one hour, to the energy regulations. And here the Fifth Circuit said they just couldn't. And then to pivot, we actually had a surprisingly sane opinion from the 11th Circuit siding with a progressive prosecutor in Florida who had been suspended by Ron DeSantis because of some of his statements, including that seemed to suggest skepticism of the state's abortion prohibition and support for abortion. Now, this was an elected

prosecutor. And so it was never clear to me how DeSantis had the authority to suspend him in the first place. And the 11th Circuit basically said, yeah, the First Amendment does protect or at least plausibly protect some of these statements. And the prosecutor does get to proceed with his challenge. So it was, again, a long opinion, I confess. I haven't read the whole thing, but surprisingly sane outcome. Despite this incredibly sane opinion from the 11th Circuit, there are some other courts who, despite being ineligible to be America's worst circuit court, still want to get, on the view that these maps violated the Equal Protection Clause because, I don't know, Black voters got to vote, had too much power, like all of the above. The court said that the districts were drawn in ways that kept the percentage of Black voters in several districts at a number that allowed Black voters to elect their preferred

representatives in more districts than if Black voters had been put into fewer districts and comprised a majority in fewer districts. So, yeah. Yeah. And, you know, this case is an interesting, interesting pairing with the Supreme Court's forthcoming decision in Alexander versus the NAACP chapter of South Carolina, where the court seems poised to say that South Carolina did not discriminate by keeping the Black voting age population in several districts sufficiently low that the districts would remain safe Republican seats and Black voters wouldn't be able to elect the candidate of their choice. That is the only real

racial discrimination seems to be where districting gives black voters more political power, which makes you think. That's what discrimination means. I mean, we know this diversity is discrimination. And so anytime diverse groups get to do things that they might want to do, it's discrimination against someone. Yeah. And it's possible that this case is headed to the Supreme Court since there have been reports that the Michigan Independent Redistricting Commission would like to take this case to the Supreme Court. Well, I'm sure only good things will happen there. So that's just great news.

I mean, black voters matter. Not in a good way, though. All voters matter. Right. Better, better. All right. So let's pivot to some court culture. And the first thing that we wanted to highlight is that it turns out, we learned in recent weeks, that SCOTUS has their own Melody Rowell. I want to meet her now.

What if it is Melody Rowell? What if Melody is moonlighting? She's a side gig. So we wanted to highlight some curious audio editing of the oral argument in Moore versus United States, which was the big tax case the court heard last year. So at the end of the arguments, when the chief normally says, quote, the case is submitted, Chief Justice Roberts instead started to say, quote, the case is dismissed before catching, right, before catching and correcting himself. But here's that clip.

Thank you, counsel, general. The case is submitted. This slip up, however, does not actually appear in the official audio file that has been uploaded on the Supreme Court's website. Here's the edit. Thank you, counsel, general. The case is submitted.

Obviously, the court cleans up transcripts, at least somewhat. But editing audio recording seems a little odd, especially when there's no acknowledgement. general. The case is submitted. Obviously, the court cleans up transcripts, at least somewhat, but editing audio recording seems a little odd, especially when there's no acknowledgement that there has been an edit, especially one that is significant. This one, I mean, I think it's pretty significant. Like, I would have left it in. I like to, they're human. I like to see these human moments. Hear them? No, they're infallible, right? So you can't hear them. They're not just final. They're infallible. That's the quote.

Right. That is the quote. Yeah. This episode made me think of two things. One, remember the court was on the sly editing in sometimes pretty substantial ways the initial slip opinions that it released that differed sometimes, again, significantly from the final version of the opinion that got published in the U.S. reports five years later until recently. Now they've really shortened that time. And then a Harvard law professor, Richard Lazarus, wrote a long piece essentially exposing this

practice. And the court was like, oh, yeah, okay, well, we'll tell you when we're going to like fundamentally change an opinion we've already put out into the world or at all change an opinion. So now they actually do upload PDFs that do show changes when they revise the original slip opinion. So great pro-transparency move. I don't exactly know what the analog for that with the audio files is, but they should let us know if they're going to change the audio, especially in a world where we are all listening live. And so, I mean, it would be great if they did it always. Well, Kate, I think they're going to be like, no more live stream for you, Kate. Exactly. That's the punishment. that's what we get. That's the punishment. Totally possible.

But the other thing that this made me think of was this episode during the Obergefell oral argument. And I remember because I was in the courtroom for it and there was a lot of reporting about it, but I remember hearing it in real time, which is there's a protester who interrupted and he was screaming about gay marriage and hell and damnation. And he was pulled out of the courtroom and it was like a fairly lengthy and dramatic, you know, couple of minutes. And then Justice Scalia made some joke about it being refreshing. Anyway, the court's audio recording is like it's gone. Anyway, I have no idea. And I don't know exactly, you know, how an enterprising scholar would sort

of figure this out. But I'm sure over the years, the court has done this a lot of times. And I am glad that we are now in a position to call them out on it when they do. This just perfectly encapsulates, reflects, captures the court's approach to history. It's like they're editing it real time. And then they also do so when engaging with it in hindsight. It's just incredible. Just smoothing things out, smoothing things out. Exactly. Taking out, you know, inappropriate interruptions like messy. Reconstruction. Inconvenient.

Also women's reproductive freedom that also didn't exist. Nope. Yeah. So we also wanted to call attention to the senator from Cancun, Ted Cruz, who engaged in some truly abhorrent behavior. So the senator behaved abominably at a judicial confirmation hearing, which is not exactly surprising or irregular, but I think sunk to a new low. So Senator Cruz asked the possibly first Muslim Article Three Court of Appeals judge if the nominee supports or celebrates 9-11 and if he condemns Hamas. The nominee handled it the best he could, but we wanted to play the clips just so listeners

would have a sense for what is happening in the Senate Judiciary Committee. Do you condemn the atrocities of the Hamas terrorists? Yes, that's what I was about to address, Senator. And is there any justification for those atrocities? Senator, I'll repeat myself. The events of October 7th were a horror involving the deaths of innocent civilians. That is contrary... I'm going to ask the question again.

Is there any justification for those atrocities? That was going to be my next sentence, Senator, which is I have no patience, none, for any attempts to justify or defend those events. Are you willing to condemn their inviting a supporter of their to attack America and to support the reasons for the September 11th attacks? Senator, I don't think anyone can feel more strongly about what happened on 9-11 than someone who was there, who saw with their own eyes smoke billowing from their towers. But you won't condemn this. I wouldn't let him complete his answer, would you? He's filibustering and not answering questions.

So I'm going to ask him to answer the question I ask instead of giving a speech on a different topic. And Mr. Chairman, you do this all the time. When a question is going badly for a Democrat witness, you jump in and try to save the witness. He knows how to answer a question. When I ask a question, he gives a speech on a different topic because he doesn't want to answer it. My question is simple. Do you condemn this event that was celebrating Palestinian Islamic jihad? Yes or no? You should not bully the witnesses nor try to bully members of the committee. Asking a question is not bullying. Complete your answer, please. Thank you, Chair Durbin. I'll answer your question very directly, Senator Cruz. I will condemn

without equivocation any terrorism, any terrorist, or any act of terrorism, or any defense of any act of terrorism. I don't know anything about this event or who these people are. I've never heard of any of them. If someone on there is a terrorist, I condemn them. So there were those. And then, of course, Senator Josh Hawley was like, I want to get in on this action and asked the nominee in what seemed like a designed to be gotcha kind of way to condemn the Holocaust. Thanks, Holly. So on our New Year's episode, Kate made an actual substantive resolution for the Article 3 judiciary, and that was she suggested that they resolve if they were in a position and

eligible to do so to retire or take senior status. And we wanted to highlight some of the judges who heard Kate and said, bet. So Judge Wynn on the Fourth Circuit from North Carolina just announced that he is going to be taking senior status and he just became eligible. So he's really on it. So thank you, Judge Wynn. That allows President Biden to nominate someone to the Fourth Circuit from North Carolina. And again, the Fourth Circuit is one of those circuits that has a number of racial and ethnic minorities, but has a relatively homogenous, or at least in the past, has been a relatively homogenous bench. So this is an opportunity to diversify that bench. And we also wanted to draw attention to an interview that was

done at the end of last year with Judge Paul Watford, the former Ninth Circuit judge who was nominated by President Obama and stepped down last year. So Judge Watford gave an interview to the National Law Journal that had some pretty remarkable candor about his decision to step down and how the Supreme Court factored into that. We'll just note two excerpts. One is, you know, when asked what led to his decision to resign, this is what Judge Watford said, quote, part of it had to do with the Supreme Court's direction. And then, you know, he listed the court's decisions in Dobbs and Bruin. And he said, quote, that caused me to think, is this what I want to do for the rest of my legal career? I was disheartened when Bruin and Dobbs were decided.

I struggled with what does this mean in terms of where the Supreme Court is headed, end quote. And while that didn't lead him to step down immediately, it did after he talked to his friend, District Judge Gary Feinerman, who had decided to step down. And Judge Watford said, quote, hearing the concerns that led him to make that decision and the questions he asked himself, I started asking myself the same questions. I realized I can do something different and something I'll enjoy more than remaining on the bench. See, this is when asking questions is actually quite productive. Friends can help friends realize they don't need to sit on the bench forever if they can make space for somebody who will be able to protect their legacy as opposed to completely dismantle it. So I hope others give this some thought. The anecdote was

particularly revealing in that Judge Watford is quite moderate. And for him to say this stuff did feel like a huge warning sign. That's very much true of Judge Feinerman as well. And while I think it's natural to react to this with something along the lines of like, well, don't we want people who aren't quite sure about what SCOTUS is doing on the bench to stay on the bench? The decision to step down now allowed Biden to confirm new and younger nominees. So their making space was not in any way in conflict with a project to actually resist some of the Supreme Court's wild overreach. Yes. And Judge Watford, Judge Feinderman, if you would like to come talk about your feelings about the Supreme Court and work through them with some people trying to do the same, open invitation to join the podcast.

It doesn't even have to be about feelings. I mean, you could just come and ask questions like, are they facilitating autocracy? Are they facilitating the dismantling of democracy? These are good questions to be asked. They can pose questions. We can just give our thoughts. I mean, right. So we wanted to highlight something that is likely to make its way soon into a court culture segment and possibly eventually the Supreme Court. And that is the fact that Texas enacted an extremely draconian anti-immigrant law that seems designed to basically relitigate the governing framework about when and to what extent states

can restrict immigration and adopt anti-immigration laws. So the Supreme Court decided a case in 2012, Arizona versus United States, that limited states' ability to do so. And the federal government has filed suit challenging Texas's law, saying that the law violates the Arizona framework. But with the change in personnel at the Supreme Court, it's possible that framework will be changed. Another development relying on the court's enormously expansive gun rights case, Bruin, a district court invalidated California's so-called sensitive places law. This is a law that barred guns and hospitals and playgrounds and banks and zoos and libraries and the parking

lots of airports and police stations and nuclear sites zoos and libraries and the parking lots of airports and police stations and nuclear sites. Guess what? The district court in this case said that the Second Amendment, as construed in Bruin, invalidated that law, that sensitive places prohibition, and struck it down. We've received a number of questions about the prospect of disqualification from office, and we will address many of those questions in a future episode, particularly when we preview and recap the oral argument about disqualification. But we

wanted to touch on one of those questions now. So some listeners have asked, what about the provision that says that Congress can remove the disqualification by a two-thirds vote? How does this affect whether the provision, this is Section 3 of the 14th Amendment, is self-executing or whether it's a political question? So I'm happy just to, you know, talk about it a little. You know, I think that the inclusion of Congress has a role in removing the disqualification might imply that Congress does not have an exclusive or determinative role in imposing the disqualification in the first instance, again, because the default rule is that provisions in the Constitution

have effect, right, and are self-executing even without enabling legislation. I would go further and say it doesn't just, I don't think it sort of maybe suggests that. I think it's very strong evidence that an argument that some enabling legislation is required is just totally wrong. It's not consistent with this provision, which says the effects of engaging in insurrection and tells Congress how to remove the effects of engaging in insurrection. It feels like a slam dunk argument to me. I guess it won't be, though, Kate, because of where it's going to be made.

As we've previously discussed, almost certainly not. But I like that energy, Kate. I like that energy. Thank you. So other listeners pointed out that it seems that certain justices will not be recusing themselves from a case about whether efforts

to overturn the election were part of an insurrection that prevents participants in said scheme from holding office in the future, even though some of their significant others arguably were part of efforts urging lawfully cast votes to be thrown out. Yes, we are talking about Justice Thomas. The court's order in the Colorado case did not note that Thomas was recused or didn't participate, which seems to indicate he is participating and

will be participating. We wanted to highlight at the suggestion of a listener and give a tip of the hat to one of the people who has raised concerns about the possible effect that Justice Thomas's participation in the case will have to perceptions of the court's legitimacy. And that is Judge Kevin Burke, a trial judge who served on the Hennepin District Court in my home state of Minnesota and who has really devoted his career to advocating principles of procedural fairness. So Judge Burke received the William H. Rehnquist Award from the National Center for State Courts in 2003 and served as president of the American Judges Association and has publicly said, you know, that Justice Thomas's participation in the case is a stain on the court's legitimacy. So y'all just wanted to let you know that Vote Save America is about to kick it into high gear. So now is the perfect time to get yourself some Vote Save America gear. So you can grab a brand to get yourself some Vote Save America gear. So you can grab a brand new tee or crew neck that's perfect for wearing to your next volunteer

shift or just lounging around the house while you rant about partisan gerrymandering to your dog. So not only is this collection adorable and amazing, 100% of the profits from the Vote Save America collection will go to support VSA and grassroots organizations working to give Americans the tools that they need to have an impact. So head over to the crooked.com store to shop the VSA collection. And low key, separate from clothing and whatnot, this next election is going to be really huge. Like as we said, not only is democracy on the line, the court is actually on the line once again. And so, you know, if you hate this conservative supermajority, you got to get involved in this election, because this election is basically about whether this conservative supermajority lasts until the end of time.

Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Melissa Murray, and me, Kate Shaw, produced and edited by Melody Rowell, audio support from Kyle Seglin and Charlotte Landis, music by Eddie Cooper, production support from Madeline Herringer Thank you. helps.