Strict Scrutiny - The Marshmallow Experiment

Episode Date: December 13, 2021

We recap the second week of the December sitting, which is (more than) enough to justify a break for the New Year!Resources: Michele Goodwin's powerful op-ed in the New York Times: "I Was Raped by My Father. An Abortion Saved My Life." Liliana Segura's reporting on Barry Jones, whose case was consolidated with Shinn v. Ramirez Nelson Tebbe's 2008 article in the University of Pennsylvania Law Review, "Excluding Religion" We rely on listeners to keep the show funded! You can become a Glow supporter for $7/month, or pick up some merch as you do the rest of your holiday shopping.  Follow us on Instagram, Twitter, Threads, and Bluesky

In 2015, Vladimir Putin's number one public enemy, Boris Nemtsov, was shot and killed in front of the Kremlin. He was a relentless critic of Putin, corruption, and war in Ukraine. Then he was assassinated. I'm Ben Rhodes, writer and co-host of Pod Save the World, and I'm teaming up with Boris's daughter, journalist Zhanna Nemsova, to tell his story in Crooked Media's new podcast, Another Russia.

Together, we uncover what happened to one family and an entire country and ask whether another Russia is possible. New episodes every Monday. Listen and subscribe wherever you get your podcasts. Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture

that surrounds it. We're your hosts. I'm Kate Shaw. I'm Leah Littman. And I'm Melissa Murray. Today's show is going to begin with news, proceed to recap a very eventful sitting, and today we're actually going to put off court and court-adjacent culture, both because we have a lot to cover today and because we are saving it for a standalone favorite things episode that we're going to record after this one and have in your feeds before the holiday. So let's start with news. So the Supreme Court Commission report is out. As anticipated, it makes no big, bold recommendations. It wasn't really asked to do so. The sole recommendation it endorsed was

live streaming of oral arguments, which of course is already happening. I will say the term limit discussion is interesting. The commission comes out pretty forcefully on the view, not that it should happen, but that it could be accomplished without a constitutional amendment, right? So there had been a very active academic debate about whether you need to amend the constitution or could just by statute impose term limits. You know, I think it's interesting. Obviously, in a post-filibuster world, if there ever were such a world, you could do this by statute. And so I think it's not inconsequential, just for purposes of how future policymakers think about what the range of options available to them

are, that that does seem to be the view of the commission, that you could do it without amending the Constitution. I think that's delusional, but whatever. I do too. I mean, I think it's delusional. I don't think the argument is necessarily wrongheaded. They basically say, you can still have life tenure as a justice. You just are sitting on some lower federal court, the way David Souter has sat on the First Circuit in his retirement. But I mean, it's already so charged, it's already associated with the prospect of requiring a constitutional amendment that there's no way that they let this happen without going down that path. So great argument, totally delusional as a realpolitik issue, I think.

And I also frankly think delusional as a doctrinal matter as well. You know, I think a unified theme in the commission report is its unwillingness to kind of grapple with the radical direction of the Supreme Court's jurisprudence. They released this report before the court released its decision on SB8. And it just doesn't grapple with the prospect that this court might find it unconstitutional, notwithstanding all of their very nice arguments to the contrary. I should say we are recording this episode after we just recorded our SB8 recap, so I'm already a little heated. So while unusual episodes, it takes me a little to get to 100, I'm already at like 150. This episode is brought to you by rage. Bullets, pineapple, rage, and like just no fucks to give. Right. So you will notice we are not going to cover SB8. So if you want to hear about SB8, go to your feed, pull up that separate episode.

We're going to focus on the rest of the week's doings at the court. Because don't worry. Our slow descent into Gilead is proceeding on multiple fronts. So we're going to cover them all. We're going to cover others. That's right. I guess we probably should have introduced this episode as also about your podcast about the Supreme Court's evisceration of reproductive rights are bad. Back to the Supreme Court Commission. What a holiday gift to put in our stockings. Is this a lump of coal or something more? I mean, it just feels like it's not a bang, but a whimper, right?

It's a gift to the Supreme Court. The Supreme Court can keep on doing whatever it wants to do, you know, allow states to nullify constitutional rights, allow states like Texas to keep in place bans on abortion after six weeks from a person's last period. And the commission is just going to be like, meh, right? Here's a book report, both sides, done. Yeah, I mean, this is something that we've said previously. I think we thought there was some utility in this sort of commission hanging over the court's activities in this sort of Damocles way when it seemed like maybe it would make some substantive recommendations that could have some chance of being taken up and that that could have some impact on how emboldened the justices did or didn't feel about moving the law radically.

And obviously, whether that actually had any impact over the course of the last six months, I think is an open question. But certainly, the product and the sort of closure of those proceedings suggest to me that, you know, if anything, the justices probably feel more emboldened and less concerned about political checks on whatever they might do. So I am loving the leaky tea aspect of this commission. So they have this report, it came out, but there are all, it's almost like there's a kind of minority report being written and circulating. So, you know, a number of folks have indicated that although they were commissioners, they were not necessarily on board with the way the ultimate product came out.

And wasn't there an op ed this week? Yeah. So Larry Tribe and Nancy Gertner. Nancy Gertner is a former judge. They wrote an op-ed saying the same in time, basically saying, like, if we are to save our constitutional democracy, Supreme Court expansion is the only way slash a necessary way to do so. So I mean, there was actually an interesting bit in that, as this year sort of progressed, while they were serving on this commission, like folks were like, oh, no, this is actually a really big deal. We need to do more than what is apparently in our remit and what some of us are willing to do. And they're actually speaking out about that. I think Sherrilyn Ifill has also talked about her service there. And she's been very clear about she would have gone further on some of these things. But I

think it's really interesting that there are other kind of dissenting voices here. And you think we'll hear more? I mean, the report was just issued, so it seems quite possible to me. What's so interesting about the report issuing is that, you know, there was all of this anticipation. I mean, I got a ton of requests, like, you know, when the report drops, we'd like you to come on the show and talk about it. And the report dropped, and they're like, you know what? Stand down. We're okay. Yeah. And they're not like, it's kind of a big like, I guess. Yeah. This is like a kid on Christmas morning being like, oh my God, this is really huge package. And you open it up and it's underwear. That's kind of what it was. Just a big, big pile of briefs. But that's a necessary

item. I'm not sure that's true. Okay. I don't know. What is an unnecessary but awful item to receive if you were a child? Sweaters. Books. Books. It's a whole box of books. Books you can learn from. Exactly. That's it.

All the things I'm buying for my children. Books and underwear. In other news, the Seventh Circuit conducted a study of oral arguments to update a 2009 study that found that women presented only 24% of oral arguments in the Seventh Circuit. That was 2009. Guess what it found this time, ladies? Improvement? Yes! Yes! Yes, girl! Women now make up 28% of the arguments before the Seventh Circuit. You've come a long way, baby. That's amazing. 4%. This report was put together by Judge Amy St. Eve of the Seventh Circuit with her former law clerk, Jamie Leguri, who is now a lawyer at Munger, Tolles, and Olson.

And I don't know what I'm going to do with all of this progress. So it turns out, right, if you drill down on the numbers, it's not quite as good as even the 24 to 28 suggests. But wait, before we get into that, I just want to digress for one moment and talk about the Seventh Circuit, because two judges in the Seventh Circuit announced one, I think, just today and then one last week that they are taking senior status, although they really are in the bloom of youth. David Hamilton and Diane Wood. Hamilton is in his early 60s. So he's not anyone's picture of a senior judge, but he was a very young district court judge. He is eligible for senior status. And he's just going to stay super active, be 100% in terms of caseload, but make space for a new colleague and a new

Biden nominee. And Wood is doing the same thing. So I just like, I want to commend them for doing that. I want to say other eligible judges of which there are quite a few in the federal courts of appeals, please take note of this. Literally the only thing you are relinquishing when you choose to take senior status is opinion assigning seniority. Like, but you're getting a new colleague, goodwill from bench and bar alike. You could turn your circuit. This is how the Sixth Circuit became so markedly conservative. A bunch of Sixth Circuit judges, when Trump became president, took senior status and created room for a bunch of new judges. And we have not seen, despite the late, great Judge Katzman very

immediately following inauguration announcing that he was taking senior status. We have not seen the same wave since Biden has been president. And there are just a number of sort of conspicuous eligible judges out there. And time is running out. We are about to go into 2022. There will be midterms. It will be harder to push confirmations through. You know, once you get into the summer of 2022, these hearings take time,

these things need to happen now. Right now. But back to the Seventh Circuit study, lest you think those four percentage points of progress mean you should start thanking Betty Frito-Lito for all the progress in the report that Melissa described. The data also found that the numbers are actually much lower for women in complex private appeals, that is for lawyers in private practice. I'm shocked. Right. I know. Whereas women argue almost 40% of appeals when the client was a government entity and 33% of criminal appeals. They argue 4% of securities and antitrust appeals and only 17% of high dollar cases.

You know, ladies aren't good at math, Leah. I think that explains a lot of this. A lot of these kinds of cases require math. And we're just not good at that. So I am told. It's just the same thing over and over again. It's just why? I do have to say props to the report for sort of actually slicing the data a little more thinly. So it's not just a big takeaway that like, oh, the numbers are, you know, incrementally, but definitely climbing. Like, no, you drill down. And like, it's a lot, you know, government offices, I think, do a much better job of actually hiring women attorneys and distributing arguments. And that's obviously true when we're looking at the Supreme Court as well, as compared to the private bar.

But unpack that. I mean, like, yes, you can go into government, you'll have more opportunities to get before court and to do motion practice and maybe even these appellate cases. You're also signing on for a massive pay cut. You may be in a situation coming out of law school where that's really devastating. You have to go to a law firm to pay off your loans and you don't necessarily have the same prospects going forward. You might be signing on to a job where you don't have paid family leave. Yeah. I mean, it's just like disadvantage compounds continually.

And advantage compounds. Exactly. Continually. Anyway. All right. Not to beat this dead horse some more, but we have some continuing coverage from Dobbs versus Jackson Women's Health Organization. So we covered the Dobbs oral argument extensively,

but we weren't the only ones listening keenly. LDF President and Director-Counsel Charlene Eiffel issued a statement about Justice Kavanaugh's use of Brown v. Board of Education and Plessy v. Ferguson. You'll recall that Justice Kavanaugh suggested that overruling Roe v. Wade would be akin to the court overruling Plessy v. Ferguson and Brown on that reading. Dobbs would be the Brown in the analogy, you know, rectifying an injustice. And so, Sherrilyn Ifill thought, that seems odd and perhaps not exactly right. And so she issued a statement and her statement reads as follows. the liberty protected by the federal constitution includes the right of women to access abortion care, Plessy endorsed and upheld a racial apartheid system that denied the equality, dignity, and humanity of Black people in the United States. The violence and clear error of the Plessy decision should not be compared to Roe versus Wade. Brown and Plessy stand for much more.

Brown represents the power of the Supreme Court to demonstrate courage and leadership in articulating and upholding the rights guaranteed to every American, and Plessy represents the power of the Supreme Court to demonstrate courage and leadership in articulating and upholding the rights guaranteed to every American. And Plessy represents the catastrophic result for our country and for millions of Americans when those rights are denied. So like a Kyle Bragg statement, although it's very elegant, very devastating, doesn't threaten to throw hands on the subway, but I think accomplishes a lot of it. Well played, Sherilyn. Well played. And I think this is right. I mean, it was grotesque, the use of Plessy and Brown in this way. I really look forward to sort of future collabs between the two of them responding to things Sam Alito says, an oral argument. Sherilyn and Kyle Bragg. We're going to put them together.

Not only are we a podcast, we are like a friend matchmaking service where we put together people who should be in conversation and then they make podcasts or something. Absolutely. Yeah, we're like that. Also, sort of post-Dobbs continuing commentary,

our recent fabulous guest, Tiffany Wright, director of Howard Law's Civil Rights Clinic. I was so sorry to miss that conversation. It was like it overlapped. It was scheduled at the same time as my last class of the semester. And so I couldn't join it. But she was so fabulous. Anyway, so she had a USA Today op-ed that also addressed the use of Brown and Plessy.

And she wrote, and this is a sentiment that she channeled on the podcast as well, given Mississippi's historical failure to protect Black women from sexual violence, this omission and any analogy to the Brown case is indefensible. Indeed, after what Mississippi has done to Black women, the state would be wise to keep Brown out of its mouth. That's some Kyle Bragg energy. Yes. That's it. Let's get the three of them together. This is sounding better and better. I'm here to make you feel better, Leah.

I would say it's helping. I think it's helping. Maybe I want it to be helping. I'm not totally sure. Let it wash over you, girl. Let it wash over you. I'm here for you. We also wanted to highlight an op-ed that was extremely difficult to read and searing by Professor Michelle Goodwin, who is a professor of law at the University of California, Irvine and host of the On the Issues podcast by Ms. Magazine. In the op-ed, she discloses how she had an abortion after she was raped by her father and discusses how the reasoning of Roe, namely the importance of abortion care to the future of women's lives, you know, was true for her life and should be, you know, true for other women as well. It's a very difficult read. Michelle is one of the most, like, brilliant people I know. And it's a very difficult read, but I think really does underscore the

importance of this issue and the cruelty of laws like Texas's that don't have an exception for cases of rape or incest. Mississippi's either, right? No such exception. Yeah, it was an extraordinary op-ed. Her book, Policing the Womb, is incredible as well. People should read her work and read the op-ed if they haven't. I will say one thing about the op-ed. I thought it was so unbelievably brutal and visceral. And I was surprised how it had this sort of flashpoint moment. And then the arguments happen and people stop talking about it. And so let me just – people should be talking about it. Like, this is exactly what you need to be talking about. Like she presents in the most personal terms imaginable, why this

is not a decision for Texas or any other state to make for any woman. The phenomenon you're describing how this kind of disappeared from the conversation, I think is just like another cruel erasure of women and the significance of this issue to women's lives about how these cases and this issue is playing out. If you've not read this op-ed, you need to go and read it. Go do the reading. It's on the syllabus. Do it now. We should also update you all on what's going on in the Harvard affirmative action case. The federal government has filed its brief in response to the court's request for the views of the in admissions, finding that Harvard's use of race as one of many factors was indeed permissible. It also goes on to say the court should not grant certiorari to overrule earlier cases like Grutter, since the stare decisis factors tilt sharply against overruling.

Because we know how much those matter. I mean, do you think this was written before the Dobbs oral argument? They're like, oh. Anyway, even if the court wants to revisit the question of the use of race in higher education admissions, the brief suggests, this case is perhaps not the appropriate vehicle for doing so. So the SG has weighed in, surprising no one. And the question is, what does the court do now? I mean, all the court was doing in asking for the views of the Solicitor General was buying a little bit more time to decide whether to take this case up. Like, there was no question of what the brief would say. Like, no, don't take the case and here are the

reasons, the ones that you just walked through, Melissa. But the time is up now. And the only question is, you know, whether they or at least four of them, like want to throw possibly ending affirmative action into their already long OT21 to-do list. What is on Leonard Leo's to-do list? I actually think like Leah, you pointed this out, but I think it's actually already probably too late for them to actually hear this case and decide it by June if like ordinary calendars hold, right? Yeah. No, I think that that's probably right. It would get put to next year, but hey, they need to save some joy for October term 2022. I mean, this is the marshmallow experiment. It's the marshmallow, like eat the

marshmallow later. It is. It is. Well, we know where Sam is on the experiment, but somebody decided to do the CESG. All the marshmallows now. Now. Let's just extend this term indefinitely until we – We will be living in OT21 until we die. Right. That's what's happening. Exactly.

The term that would not end. I do want to say, having just discussed this case after we noted Dobbs' addenda, I feel like there's some possibility the court will in Dobbs overrule Roe versus Wade by declaring that sexism has ended and we have ended sex discrimination against women. And then the next term be like, hey, guess what? We solve racism too. Affirmative action is also over. Like a real nice one-two punch. This is like straight out of the Shelby County playbook. And it would be like the biggest self-own for the chief. Like we're going to hang you by your own petard.

Like we're going to use your stuff and do the most with it. Right? Yeah. So Kate, what about that guy who used to be president? I was in a reverie that I just don't even want to describe. Okay. Next item we want to flag. Okay.

So a panel just the day before we're recording this, a panel of the D.C. Circuit unanimously rejected Trump's request that the court enjoin the executive branch from providing the January 6th commission with White House records to assist in its investigation of the January 6th insurrection. I sense more marshmallows coming online. Leah keeps saying like the expectations are already like subterranean, but like they're gonna have to go deep, deep, deep if in fact the court agrees to take this case. I mean, which I guess means maybe we should prepare for it. But basically this is like an unbelievably clean rejection

of Trump's truly terrible arguments for withholding these documents. And he's had a range of different sort of qualities of legal representation across the years in which he's been filing lawsuits. That's so generous. Oh, my God. Wow. This was not a well-argued request, the D.C. Circuit or the district court before it. So, not surprisingly, a big, big loss for Trump. You know, no, you can't just decide that the president and Congress working together, having reached this resolution over these hard privilege questions,

are superseded by your, you know, desires to conceal embarrassing information, which is like not what he's saying, but basically what he's saying. So D.C. Circuit says, no, that's not how executive privilege works. You may have some rights as a former president, but certainly not rights that are, that overcome the decision made by the incumbent president, who is the primary protector of the privilege, which is about the institutional and not the personal presidency. Anyway, so the next stop is, I think, a cert petition. And we will see. Sam Alito downs a protein shake. He's like, we don't need to leave those marshmallows for later. It would just be honestly really shocking

even to me if the court decided to take the case. So yeah, I don't know. I'm not making any predictions, but I'm- We're going to come back to this in about three months, four months. Well, there's just all this language in even the Trump versus Mazars decision that makes it really, really hard for them to find for him here. I feel like there will be at least one vote for Sir. That was when the chief justice was the chief justice. Yeah, exactly. Oh, I think Sam for sure.

Yeah, yeah, yeah. Yeah. Sam Neill. Yeah. Clarence. We'll get to this when we talk about, see, Alito's gratuitous invocation of critical race theory near the end of the episode. But I mean, I think that given the media diet that it's pretty clear that he consumes, he may well think that like Jan 6 was just like, you know, peaceful protests. And so the whole, you know, and that the election was in fact stolen.

He thinks it was a false flag operation by the critical race theorist, Kate. And Antifa. Antifa. And if that's, I mean, the Disney circuit opinion like starts with these categorical factual claims, which are correct claims that Joe Biden won the election. And Sam Alito may be like, I don't know. I think we need to revisit some of that. So the question is, is he alone? And I hope the answer is yes. We will see. Leah and I exchange a knowing look. Who's going to pick Kate up off the floor?

We'll be here for Kate when it happens. We'll send Rajay Jaan. He can pick me up. Okay, that sounds great. That'll be the silver lining. That will be the silver lining. On to the oral arguments that the Supreme Court heard last week. First, United States versus Taylor. So this is the case about the proper interpretation of the Armed Career Criminal Act, the federal statute that increases a person's term of imprisonment for

unlawfully possessing a firearm. The Armed Career Criminal Act, or ACCA, imposes a 15-year mandatory minimum term of imprisonment on persons with three or more convictions for violent felonies. And ACCA defines a violent felony as, among other things, a crime that has as an element the use, attempted use, or threatened use of physical force against the person of another. The question in this case, Taylor, is whether a prior conviction for robbery under another federal statute, the Hobbs Act, qualifies as a violent felony under this ACCA provision and therefore subjects a person to ACCA's mandatory minimum of 15 years. So some doctrinal background is helpful for unpacking the court's thinking about this

question. So in order to decide whether a conviction under a statute counts as a violent felony for purposes of the ACCA, courts use what is known as the categorical approach. So they don't consider whether the specific facts of a defendant's crime meet the statutory definition of a violent felony. Rather, they consider whether any and all convictions under the statute under which the defendant was convicted meet the definition of a violent felony. So categorical as opposed to specific. And this approach requires the court to analyze what conduct could be prosecuted under the statute and ask whether even the most far-reaching application of a statute would qualify as a violent felony. So we have noted that the court, or at least some justices, have at times taken

different approaches to assessing whether a criminal statute raises concerns because of the conduct that could be prosecuted under that statute, right? So like in white-collar criminal cases, like the court's public corruption case involving the Bridgegate defendants, U.S. v. Kelly, which we talked about at length on the podcast, the court has often said something like, well, look, the statute could be used super aggressively by an aggressive prosecutor, so we're going to interpret the statute narrowly or perhaps even invalidate it. By contrast, in other kinds of non-white-collar criminal cases, the court, or again, at least some justices, will say, well, the prosecutor would never push the statute that far, so we just don't have to worry about these kinds of hypothetical cases.

So, again, here the question is whether a conviction under the Hobbs Act provision regarding robbery qualifies as a crime of violence because it has, as an element, the use or attempted use of force against a person. And the big question that seemed to occupy the justices' minds was the possibility that someone could be prosecuted for attempted robbery under the Hobbs Act and specifically for making an attempt at a threat under the Hobbs Act. Some of the hypotheticals that the justices came up with about what might constitute an attempted robbery by threat under the Hobbs Act would not involve the use of force or attempted use of force against a person. And in fact, some of the justices' hypotheticals involve, da-da-da-da, marshmallows. Here's Justice Breyer. The threat need not be... Got with a fake gun. Its gun is made out of marshmallows, you know, and it's in his pocket, and it just looks like a gun.

And he gets up close, but he doesn't take the gun out, and he doesn't do anything else. And the reason is because the teller turned the other way at the last minute. Now, or because the policeman walked by at the last minute. You're saying that's not an attempt at a threat. I don't know. I don't know. Why isn't it? I think, Justice Breyer, a man walking into a bank with a bunch of marshmallows in his pocket, shaped like a gun, has not committed an attempted robbery.

So this became something of a running joke. No surprise. Here is Justice Thomas referencing it later. Thank you. I just wanted to assure myself that there was no marshmallow gun involved. No, sir. Thank you. He had asked Rebecca Tableson, who was representing the federal government, to summarize the facts of the case, and that was his explanation about why he asked her to do so. The chief justice also brought up another hypothetical, this time cribbed from a movie. Thank you, Mr. Grieven. This discussion actually reminded me of a scene in a Woody Allen movie. I don't remember which one it was, but you might, where the robber walks into the bank, hands a note to the teller, and the teller reads it and says, give me the money. I have a gun. And the robber says, no, it's a gun. I have a gun. And she says,

no, that's definitely a B. And then he goes and asks the teller next to her, is this a B or an N? She says, oh, that's a B. And I think the guy just leaves. I mean, how do you analyze that? So that would actually be a substantive violation of the Hobbs Act, if take the money and run. Is that what it was? Yes, it would, because there would have been a threatened use of force. Now, it probably would be an attempt if he walked out without the money. But that would be, you know, if he made the threat and got money,

it would be a crime. If he makes the threat and he doesn't get money because they can't read the note, it could be prosecuted as an attempt. But not all Hobbs Act attempts involve the actual communication of the threat. I think that's our central point. But it's an attempted threat. Correct.

Not a real threat. It's an attempted Hobbs Act robbery by means of threat. He made what he thought was a threat. He communicated something that was an intention, could be understood as a threat of harm. It wasn't understood by the teller, but you don't have to have success in order to have criminal liability. You know, an attempt that fails is still prosecutable as an attempt. So, yes, I think it would be covered.

As Leah mentioned, the government was represented by Rebecca Tableson, and she argued that in order for the court to say that Hobbs Act's convictions do not qualify as violent felonies, the defendant had to point to a case where the Hobbs Act was actually used to reach conduct that wouldn't qualify as a violent felony. And Justice Kagan summed up the argument in this way. I think, Ms. Tableton, but the question here really is, are you going to sort of say, well, we're the government, we're here to tell you that we are not never going to charge an attempted threat? Unsurprisingly, Justice Alito was sympathetic to this position and was all like, these hypos only arrive in law school classrooms. Ha ha ha.

So funny, Sam. Michael Dreeben, who we'll talk about more in a second, was representing the defendant here. And he argued that the defendant did not have to do so, at least where the language and the statute would clearly cover certain conduct. So the government also tried to represent that it wouldn't prosecute these various hypotheticals, including the marshmallow gun hypothetical, as attempted threats, but then also kind of seemed to indicate that the government thought these hypotheticals raised actual threats, which Justice Kagan then pointed out. Just to follow up on both of these, I mean, it seems to me that what you're doing is you're sort of disclaiming something with one hand and then taking it back with the other. You're saying, oh, we won't

prosecute attempted threats, but then you're saying that everything that all these hypotheticals that sort of sound like attempted threats to the people who are making, who are posing the hypotheticals, that you can just prosecute those as threats in themselves and that you don't disclaim the ability to do that. But I think what you're hearing is that there are some threats that just haven't been consummated to the degree that they are threats. And the question is, you know, if you accept that idea that there is some threats that just haven't been made yet, but they're trying to make them, are you just going to leave those alone? Michael Dreeben's answer to the Chief Justice's Woody Allen hypothetical underscored the same

point, right? The government prosecutes these cases as threats, even if they're labeled as attempted robberies, and that it's not a defense if someone didn't intend to use force, so there aren't going to be any cases drawing the distinction that justices were interested in between threats and force. So this next part about the case is going to kind of shift into some court culture, but I think it's helpful to understand what happened and what might happen in the case. So as we've noted, the defendant in the case, Mr. Taylor, was being represented by Michael Dreeben, who is now an attorney at the law firm O'Melveny & Myers. But before he was a lawyer at O'Melveny, Michael Dreeben was a deputy solicitor general for the United States in the solicitor general's office and was specifically in charge of criminal cases. He also spent a brief stint with special counsel Robert Mueller's office.

In his position as deputy solicitor general, however, Michael Dreeben oversaw the United States position in basically all federal criminal cases. He also argued many criminal cases before the Supreme Court on behalf of the federal government. And it's probably not an exaggeration to say that there are few, if any, people in the United States who know more federal criminal law than Michael Dreeben. And so this really seemed to matter. That is, it might end up mattering a lot that the defendant in this case could leverage Michael Dreeben's knowledge and expertise and representations about the federal government's practice in criminal cases. Because Michael Dreeben could basically say over and over and over again that there are

cases where the government treats threats or what the justices were calling attempted threats as robbery under the Hobbs Act. And the justices knew he knew what he was talking about. So again, really pays to be a repeat player here. So here's an example of one way in which Michael Drebin's expertise really seemed to shape the debate. Mr. Drebin, one minor question. In your many years of experience, have you ever seen someone charged with a tempted threat? As you posit, for example, similar to your hypothetical. So Justice Thomas, two answers on that. The government's typical approach to charging is to use the entire language of the statute. So the Hobbs Act would be charged in hake verba, and it includes threats.

It includes taking by force. No, I mean, I understand that. But have you, in the underlying facts, have you ever seen, even if it's covered by Hobbs Act, have you ever seen this specific set of facts charged as a crime? It's actually fairly frequent, Justice Thomas, because many robbers do not intend to use force. They go to banks and convenience stores and other low-hanging fruit for targets for money. I mean specifically attempted threat. Sometimes the government cannot prove anything more.

It is much easier to prove that somebody with a gun in their pocket who goes to a convenience store is attempting to threaten than it is to prove that they attempted to use force. And the government never has to prove more than the attempted threats to get a conviction. And here's Justice Neil Gorsuch chiming in to say what he really wants to know is what Michael Drieben knows about all of this.

Mr. Drieben, I'd like to pick your brain in a different direction, if I might. It's good to see you. Or at other points, both Justice Kagan and Michael Drieben noted how the frequency of It's good to see. Amen. And so this, that is Michael Dreeben's arguments in this case, is kind of what we call using your powers for good people. Amen. Maybe we'll also play this kind of brief funny exchange with Thomas noting Dreeben's prior time in government service. And Congress had no reason to worry about that when it passed the elements clause because the residual clause was the backstop. That is the source of the reason why the court has concerns today about whether the elements clause is not broad enough. You said that when you were on the other side, too, didn't you? I would have made the arguments that I thought the United States should make. That was not the only laughs that Michael Dreeben generated by virtue of being a familiar

player with the justices. Here's Michael Dreeben leaning into virtue of being a familiar player with the justices. Here's Michael Dreeben leaning into his replete player status and having a little fun with that dewy skinned, but thin skinned Justice Samuel Alito. I understand the theory. I'm just asking, are there reported cases involving prosecutions based on this theory where there was no actual threat? There was simply an attempt to threaten. Yes, I think almost all of them. Where are they? Well, I mentioned the two that were cited in our brief. Williams is a non-precedential Third Circuit opinion. All right, it's the Third Circuit. So, wow. You know, I would special place in my heart. What do you have beyond that?

More of this energy? Yes. Yes. Yes. So in many ways, all of these clips underscore what we already know, namely Michael Dreeben is a great advocate. But I did just want to play one clip that was especially powerful evidence that Michael Dreeben is a great advocate. So Jessica, if I could unpack this a little bit, because I essentially agree with what

Justice Sotomayor said. So there's even more court culture to note from this argument. Attorney General Merrick Garland was in the court for the oral argument, his first time appearing at the Supreme Court in his capacity as attorney general. He was introduced by his former law clerk, now Solicitor General, Elizabeth Prelogger. So here's some audio of that. Court now recognizes the Solicitor General of the United States. Mr. Chief Justice, and may it please the court, I have the privilege to present to the court the 86th Attorney General of the United States, the Honorable Merrick B. Garland of Maryland.

General Garland, on behalf of the court, I welcome you as the Chief Legal Officer of the United States and as an officer of this court. We recognize the very important responsibilities that are entrusted to you. Your commission as Attorney General of the United States will be noted in the records of the court. We wish you well in the discharge of the duties of your new office. Thank you, Mr. Chief Justice. His appearance at the court made me wonder whether he might try to argue a case at some point. There was once a kind of tradition of attorneys general arguing like one case during their tenure, often like a fairly discreet one. I think the last time might have been Michael Mulcahy in 2008, although the Deputy

Attorney General Rod Rosenstein did an argument in the Trump years. So anyway, I'm just curious. I kind of doubt Garland will do it. And frankly, the Justice Department probably has many higher priority matters to attend to. So maybe it's good he doesn't spend his time prepping for an argument. But for what it's worth, I actually do like the tradition. So I'm curious if he'll resurrect it. Maybe he was just sitting there looking at Neil Gorsuch like, that's my seat. You're in my seat. You are in my seat. I don't really know Merrick.

I don't know Merrick Garland. I don't know him either. He's not like a grudge bearing. A grudgy judge. He's not that guy. Yeah, obviously it's a really different world and I just – I can't really bring myself to think much about it. But all of the cases that we're talking about now look really different if it's Garland

and not Gartland. He's just like in the courtroom, like, let the fantasy SCOTUS wash over you. Think about it. Yeah. It's too painful. An alternative universe. Yeah. In this universe, back to the cases that this universe heard.

Back to the real world where Garland is not on the Court of Justice, but rather in the title and captions of these cases. So let's talk about Patel versus Garland. And this is a case that involves judicial review of adjustment of status determinations. So Congress barred judicial review of any judgment regarding the grant or denial of certain kinds of immigration relief, specifically discretionary relief. But Congress later added that the provision should not be construed as precluding review of constitutional claims or questions of law raised upon a petition for review. And a petition for review is when you challenge an administrative determination in federal court. Here, it's the Department of

Homeland Security's determination that someone is removable. Okay, so until the 11th Circuit got involved, the provisions of federal law worked as follows. You could get a federal court to review threshold eligibility determinations, i.e. whether someone was eligible for discretionary relief, but you couldn't ask the courts to review whether the person was ultimately entitled to an exercise of discretion and a grant of discretionary relief. So for example, some of the statutes say things like, well, this kind of discretionary relief is only available to people who entered after inspection or is only available to people who have citizen children. And if an immigration judge denied relief and said, I'm denying you relief because while you entered after inspection, you entered at a busy border crossing, then you

could say, look, the immigration judge made an error of law imposing a threshold eligibility requirement that doesn't exist in the statute, that wouldn't necessarily mean that you would ultimately get discretionary relief, but just that the immigration judge couldn't deny you discretionary relief for legally incorrect reasons. And the question here is whether a court can review the immigration judge's determination that the petitioner, Mr. Patel, is ineligible for adjustment of status because he checked a box that said he was a citizen when he applied for a driver's license in Georgia. The statute says you're not eligible for discretionary relief if you falsely represent yourself to be a citizen for a benefit under state law.

The 11th Circuit said that that's unreviewable because it is a factual question, not a legal one. Mr. Patel argues that he checked the incorrect box and that it wasn't a lie. Although at one point, Justice Barrett asked the amicus whether her position would preclude review of legal questions, and the amicus seemed to say yes. So here's a clip of that. Ms. Meehan, I want to clarify the scope of your position. So isn't it true that your position does lead to the conclusion that in district court, even legal questions are not reviewable. I think that is that is the right way to interpret the statute as amended in 2005. And we should say the reason there's an amicus in this case was because the government agreed with Mr. Patel that a court could review whether he was eligible for discretionary relief based on checking the box on his driver's license form.

So that's why there's an amicus arguing in the case. More broadly, the case could have huge consequences for immigration in the United States. There were 94,000 applications for discretionary relief between January 2017 and September 2020. We should also note that the amicus here was Taylor Meehan. So the justices actually may be listening to us. So we've said before that when there are these amicus positions available, that they should try and diversify the range of advocates before the bar. And in this case, they appointed a woman to fill that role. And it's possible that the court appointed amicus could win in this case. The last time a court appointed amicus won was Adam Mortara,

who was a court appointed amicus who won in Terry v. United States, the federal sentencing case. And Taylor Meehan is actually his former student. They're also both former Thomas clerks, so there could be something to that too, former Thomas clerk. I think she may be a former Scalia clerk as well. There is a possibility that the court-appointed amicus position that these judgments aren't reviewable could ultimately prevail. And that's because I think both Justice Thomas and Justice Alito seemed like they were going to say these determinations are fully ineligible for review. And it is possible that Justices Kavanaugh, Barrett, and Gorsuch

are with them. There seemed to be this really weird thread going through the argument where there was a question about how courts could possibly review a record for factual determinations. The justices seemed to want to say credibility determinations and determinations about whether someone is lying are discretionary. This just had a really weird air of like a post-factual world. Like, how can we know what is truth and what is real to me? Anyways, Justices Sotomayor and Kagan kept trying to say, look, the question here isn't one of credibility. It's what his intent was when he checked this box that has a right answer. And it's the kind of question we require juries to answer. It's not a discretionary decision, so reviewing courts can review it. But it's not clear to me where a majority of the court is going to go here.

Off on his own island was Justice Breyer, who brought up Ellis Island. That was the island he was on. With marshmallows. All right. The court also heard oral argument in Hughes versus Northwestern. We actually previewed that case pretty extensively with Tiffany Wright. So we'll pass on it today so we can talk some more about a case that Leah really, really is excited about. And that, of course, is Shin versus Ramirez. Okay. So this episode is going to air on my birthday, which means I get at least 15 minutes to discuss this very important habeas case. And Melissa, turn back on your video. You turned off your video. You can't

do that during this discussion for my birthday. I also took a picture of me turning off my video. She really did do that. For listeners benefit. So we have now twice mentioned that the court would be hearing the case and briefly summarize the issues in the case. But because they are really technical, and I think even if you spend a lot of time with, like, federal statutory questions, habeas is really, really hard terrain. And, you know, Leah is just an amazing expert on it. Have you thought about filing a habeas petition? Have you filed a habeas or something, Kate? I don't know if I would know how. I'm sure I would

err because it's really hard to get it right. I'll maybe briefly mention the issues in the cases, but we want to give you most of the airtime, Leah. But basically, the issue in these cases is, generally speaking, whether individuals convicted in state court can present new evidence in federal court that their trial lawyer was so incompetent that their Sixth Amendment right to effective assistance of counsel was violated. And specifically, it's about whether persons convicted in state court are limited to using the shoddy work of the incompetent lawyers the state appointed to represent them at trial and then again in state post-conviction proceedings. So the way that this issue typically arises is as follows. The Sixth Amendment requires states to appoint a competent, effective lawyer for indigent

defendants who cannot afford one. But what happens if the state appoints to you a crappy lawyer who doesn't raise arguments in your defense or investigates the evidence against you? How and where are you supposed to argue that your Sixth Amendment right to the effective assistance of counsel was violated? That typically doesn't happen on your appeal. That is, it doesn't happen when you appeal your conviction to the state's appellate courts and the state Supreme Court. The reason for that is that you're not supposed to introduce new evidence on appeal. The appeal is limited to evidence that was in the trial record.

But proving you've received ineffective assistance of counsel often depends on evidence outside the trial record, such as evidence your trial lawyer failed to investigate and uncover. So these claims, the claims that your Sixth Amendment right to effective assistance of counsel were violated, are often raised in what are called state post-conviction proceedings, proceedings in the state trial court after your appeals have finished. And here's the kicker. What if a state appoints you a crappy lawyer in that state post-conviction proceeding? And that crappy lawyer doesn't investigate or argue whether you had a crappy lawyer at trial. If that happens, then you might never have any court even consider whether your Sixth Amendment right to counsel

was violated. Once again, disadvantage compounds. Yep. And the Sixth Amendment right to counsel is super important, right? It is designed to protect other constitutional rights, since your lawyer is supposed to point out if the state is violating other constitutional rights at trial, and having a competent lawyer is also supposed to guard against convicting innocent people. Indeed, one of the cases that was consolidated in this argument, the case of Barry Jones, involves a case where two courts found the defendant was quite probably innocent of the crime for which he was convicted and for which he was sentenced to death because

his trial lawyer failed to investigate the state's theory of the case. The state argued that Jones had murdered his girlfriend's daughter and specifically argued that the victim's injuries were inflicted within 24 hours of when she died, which also happened to be when she was in Jones's care. Turns out that was wrong. The victim's injuries were inflicted long before that when she wasn't in Jones's care. All right. So the problem is this. What if you are appointed a lawyer who is ineffective and doesn't provide you with effective assistance of counsel, and then the state appoints again another lawyer who doesn't do the things that the lawyer should do. He doesn't investigate whether your previous lawyer, the lawyer at your trial, was terrible as well.

So now you're really stuck. In 2012, the Supreme Court, in an opinion, Martinez v. Ryan, one of the greatest habeas cases ever, said – Sure to be overruled. Melissa, it's my birthday. Happy birthday. lawyer who fails to argue that the state had previously appointed you an ineffective lawyer at trial, then a federal court can hear the claim that the state appointed you an ineffective lawyer at trial and therefore denied you your Sixth Amendment right to the effective assistance of counsel. Generally, if you fail to raise an argument in state court, you can't then raise the argument in federal court as a basis for challenging your conviction. But Martinez said So sensible. Definitely going down. where the state required you to raise your Sixth Amendment effective assistance argument.

So sensible. Definitely going down. Not definitely. Do not say that, Melissa. Sorry. Leah is having a moment of uncharacteristic optimism about this argument and the possible outcome, and I don't want to talk about that. SBA just ruined all of it, though. I don't mean to be a turd in the punch bowl, Leah.

I'm sorry. I'm really sorry. Back to the arguments that are being made, right? So Arizona comes back and says about Martinez, aha, well, Martinez said you can raise the ineffective assistance claim and have a federal court hear it, but you can't actually present any evidence to support that claim. And that's because, according to Arizona, the federal statute governing habeas, the Anti-Terrorism and Effective Death Penalty Act, or EDPA, restricts federal courts' ability to hold evidentiary hearings to certain cases, and Arizona argues that category of cases doesn't include cases like this one. Just to be clear that this is an incredibly Kafkaesque situation, and the stakes are actually

really enormous on a number of dimensions. So, again, Leah, I don't mean to rain on your parade. But this case affects the likelihood that a lot of innocent people may be convicted and possibly even sentenced to die in capital cases. The Innocence Project has found that since 1989, almost 3,000 individuals have been wrongfully convicted. And since 1973, 186 people were wrongfully sentenced to death and then subsequently were exonerated. So the crux of this is that bad lawyering is often a cause of wrongful convictions. And those are just the cases where people were formally exonerated. Like we don't even know what those numbers look like for cases where this wasn't investigated, and we actually don't know.

At oral argument, Arizona really leaned into the stakes of this. So here's Arizona's opening statement. That no fact finder could have found the prisoner guilty is not enough. Arizona repeated this three times. And from Congress's point of view, even innocence is not enough, because that only satisfies B. You still have to meet A. Really wanted to underscore that innocence is not enough. That was like their theme. I was really shocked that the lawyer for Arizona didn't find a way to just make the point that your quarrel is with Congress, right? Not with us, Arizona. This is the statute that's the problem without repeatedly saying we actually

don't care if someone is innocent. Innocence is just not enough. But that was definitely the point that Arizona was crystal clear in making. We should say that the issue in this case also affects the enforcement of other constitutional rights. Martinez has been used in the lower courts to vindicate other constitutional rights, not just the right to counsel, but the right to have the prosecutor not strike jurors on the basis of race, right, enforcing Batson, or the right not to be compelled to testify. So at stake is not just the right to counsel, but a whole slew of other substantive constitutional rights. So I was terrified when the court chose to hear these cases because no court had agreed with Arizona's interpretation of the federal statute. So why would the court grant cert in these cases? They

didn't meet the court's traditional criteria, such as where the federal courts disagree about a question of federal law. Here, you know, they all agreed that the habeas petitioner is entitled to an evidentiary hearing under these circumstances. But oral argument left me cautiously optimistic that a majority of the court will reject Arizona's arguments and side with the unanimous agreement among the federal courts. To explain how I'm reading the oral arguments, I just want to explain one more aspect of the legal issue in these cases. So as I said, Arizona is arguing that while Martinez allows an individual to raise the argument that their trial counsel was ineffective, even if they did not raise that argument in state court proceedings, the federal statute prevents them from introducing any evidence to support that argument unless they satisfy

certain narrow exceptions. Specifically, the federal statute, EDPA, says that if an applicant, quote, failed to develop the factual basis of a claim in state court proceedings, the federal statute shouldn't order an evidentiary hearing except in narrow circumstances not applicable here. And Arizona is like, well, they failed to develop the factual basis of their claim because their lawyer never raised it. So that's the end of the matter. But there are just a million problems with this argument. Just want to focus on a few that came out at the argument. One is that Arizona is just flat out wrong, that the phrase, quote, failed to develop in the statute means anything like literally failed to

develop. Specifically, in Michael Williams v. Taylor, the Supreme Court interpreted that phrase to largely codify the pre-Edpest standard, which asked whether someone was, quote, at fault for failing to develop the factual record and assess the relative fault of the litigant and the state for the deficiency in the state court record. Under that standard, courts had said someone wasn't at fault if, for example, the claim they presented was novel, and Justice Kagan and Justice Sotomayor were all over this point at oral argument. Second, Arizona is just wrong to suggest that an attorney's errors are always attributable to the client, thus making the client at fault unless there is a constitutional violation. So this is just Martinez itself. The Supreme Court has said you generally don't have a right to an attorney in post-conviction

proceedings, which is where the attorney's error happened in Martinez when the lawyer failed to argue in the post-conviction proceedings that a defendant's trial counsel was ineffective. Yet still, the Supreme Court said that the defendant wasn't at fault for their attorney's errors because states had set up a system that required a defendant to raise their Sixth Amendment claim in a forum where they didn't have a right to counsel. I just need to play this clip from Justice Kagan because it is music to my ears in suggesting all the problems of this argument and the fact that Martinez resolved it. So let's play that clip here. Well, except that I think that Martinez pretty explicitly rejected that. And I'm just going to quote from a bunch of different places.

But the court says it was the state's deliberate choice to move trial and effectiveness claims outside the direct appeal process. And it was that choice that significantly diminished the prisoner's ability to assert trial and effectiveness claims. And so, too, the court says it was the state's procedural framework that made ineffectiveness qualify as cause for a procedural default. I mean, that, all that language is clearly sort of saying that the blame here for post-conviction ineffectiveness is ascribed to the state. Now, you know, I mean, this is an ascription and we can argue whether it really is the state's fault or, you know, we can argue in all these contexts about like, really? But essentially, this is the theory of Martinez,

that the state has set up a system in which it's proper to ascribe the fault to the state, not to the defendant. This also happened in another case, Maples v. Thomas. In Maples, the lawyers abandoned the defendant. They went to work at other places where they could no longer represent him, and they failed to file an appeal during his post-conviction proceeding. That wasn't a constitutional problem because defendants don't have a right to have a lawyer during appeals and post-conviction proceedings. Still, the court said the defendant was not at fault for the attorney's errors. And Justice Sotomayor and Justice Kagan were, again, all over this point at argument.

And, of course, there are also the problems because of how Arizona's proposed rule interacts with Martinez. Arizona is basically saying, well, Martinez says you weren't at fault for failing to present the claim, but you were at fault for failing to present evidence to support the claim that you never presented. Martinez also emphasized again and again how ineffective assistance of trial counsel claims depend on evidence outside the trial record. Here's some more music to my ears making this point. But just to go back to where the chief justice started over and over in Martinez, when the court is saying why this is important, the court talks about the role of the attorney in developing evidence. I mean, you know, three, four or five times. Martinez was not under any, you know, misperception that this was not an evidentiary question, essentially.

And it was like a happy birthday. This is basically a serenade to you, Leah. And there were some surprising acknowledgments of this point from certain quarters. So here is the chief justice appearing to understand this. But it's a basic syllogism. The idea is if you do get the right to raise the claim for the first time because your counsel was incompetent before, surely you have the right to get the evidence

that's necessary to support your claim. I mean, the whole reason some states say you shouldn't raise your incompetence claim until after the direct proceedings is that it's much more efficient and natural to have an evidentiary hearing at that time, rather when you're halfway up the chain between the trial court and the court of appeals. At times, Justice Kavanaugh also appeared to understand this. I guess picking up on Justice Thomas' and the Chief Justice's question, though, doesn't it really gut Martinez in a huge number of cases? And then what's the point of Martinez? The court obviously carefully crafted an opinion to give you the right to raise an ineffective assistance claim to make sure it's considered at least once.

And this would really gut that in a lot of cases. So I need a good explanation for how to do that or why to do that, given what Martinez says. But it was a narrow question on an important issue. majority was unaware somehow of how this would play out and was articulating this important right about when you could raise something, but didn't realize, oh, actually, you're never really going to be able to pursue it because of this other provision. I mean, it's hard to envision the court thinking that that would make any sense. Now, that being said, these justices did make some observations indicating some sympathy for Arizona, which made me a little concerned. So here is Justice Kavanaugh saying to the Arizona lawyer, you have a forceful argument on the statutory language, and I think this case

is close for that reason. Or the chief justice asked Bob Loeb, who was representing the habeas petitioners, you know, do you have some authority for what we should do when the text of the statute says one thing and a subsequent case suggests another, which is just framing the case in a way that kind of stacks the deck in favor of Arizona. But it's hard to know whether to what extent they're playing devil's advocate or something like that. And some justices didn't talk at all during the argument, which makes interpreting the argument even harder. So justices Breyer, Barrett, and Gorsuch said they asked no questions. So it's hard to say maybe wishful thinking on my part after argument, I thought it was close and that there was maybe a slim majority to reject Arizona's position. But honestly, after what happened during the oral argument in SB8 and the ultimate opinion we got, I think maybe I should prepare myself for the worst. And maybe oral argument is just not an indication that the justices will be reasonable. We've talked a lot about the urgency of the court deciding SB8, and they finally have done so after months of having the opportunity to do something.

But it's also worth noting that there is a significant amount of urgency to deciding these cases here, and certainly these claims. And Bob Loeb, the lawyer at Oreck, who has argued these cases at the court, pointed out that the courts below had found Barry Jones would not have been convicted of the crimes had his lawyer been effective, that he may well have been found innocent. And they ordered him released. But he served 25 years in prison for crimes he likely did not commit. And so the Supreme Court cert grant in this case stayed those orders and actually prevented his release. And so decide these cases and release your decisions and let this man go. It reminds me of something, a point I meant to make about the D.C. Circuit opinion on the Trump executive privilege issue, which is that was, you know,

obviously those are not life or death stakes, but that's a case in which time really is of the essence and delay just redounds to the benefit of the person trying to suppress the disclosure of records. And the DC Circuit in that case, you know, issued a 70 page opinion in like 10 days. Like it is possible if, you know, these judges prioritize speed and dispatch to move quickly. And the Supreme Court is not exactly overloaded with cases at the moment. And the Supreme Court is not exactly overloaded with cases at the moment. And so they should be able to resolve cases like this expeditiously. To put an even finer point on the one you're making, Kate, in the Trump disclosure cases, delay will actually likely lead to a decision that comes after the midterm elections,

whereas control of the House may have changed and this commission will have gone away anyway. Yeah, which is why I'm worried about even if they don't grant the case, if they sit on it for a long time, then... That's exactly right. These are important records. I don't think they're unable to do their work without the records, but I do think these are important. What was happening at the White House literally on the day of January 6th as all this was unfolding is critical information for the committee to have. So one final note on the Ramirez and Jones cases. Liliana Segura of The Intercept has done just fantastic reporting on these cases.

So if you are interested, please check out her work and reporting on these cases and these issues. OK, so let's move on to Carson v. Macon, which is a follow-on to the court's 2020 decision in Espinoza v. Montana Department of Revenue. That's a case that we covered extensively when it was argued and decided. And in that case, the court struck down a Montana scheme that provided parents with vouchers they could use to send their children to private schools but not to religious schools.

The prohibition in the Montana scheme was on providing state funds to schools based on the religious status, but the court didn't answer the question of whether the Constitution lets states keep government funds from flowing to schools where the money could be used for religious purposes. So this status use distinction. So that's kind of the question at issue here. And so let's maybe give a little bit of background on the Maine scheme at issue, because I think that will sort of help clarify the legal issues. So Maine is a state with a small and dispersed population. A subset of the state's school-aged children live in districts with no public school. And for those children, the number is like 5,000. It's a pretty small group of children. The state has a program in which it pays for them to attend another public or private

school of their choice. In order to qualify to participate in this program, the private schools in question have to be non-sectarian, which Maine explains is because the purpose of their program is to be sure every child has a free public education. And for Maine, an aspect of a public education is a religiously neutral one. Maine has had this program for some time. And prior to 1980, they allowed private schools to participate, and those schools could be parochial. So there was this period in time where parochial schools also participated in this program. But not surprisingly, they made this change in the 1980s. It was first Maine's attorney general who issued some guidance,

and then it was later codified in the Maine legislature. But the guidance was that they could not continue to subsidize parochial school attendance without running afoul of the establishment clause. And that's not surprising because the 1980s was when the court was doing all of this establishment clause jurisprudence. So this was like, you know, the crash and this, that and the other and whether the government could come to entangled in religion if it subsidized or offered some kind of like sort of tacit endorsement of religion. So it's not surprising that Maine made this change. But the fact that there was this period where religious education used to be part of this program was a big part of this oral argument. Absolutely. And I mean, in history, I think here, not just of Maine, but in general, of the way states have resolved to kind of tension between the First Amendment's two religion clauses is, I think, important. So maybe let's take a beat on that. Because the sort of shifting arrows that you mentioned, Melissa, I think speak to the kind of

centrality of each religion clause in the Constitution. So I mentioned Espinoza at the outset that it was obviously not the court's first foray into the question of government funding of religious schools. And the cases that involve questions of government funding religious education highlight the tension between the two religion clauses in the First Amendment, right? So too much government support for religion may contravene the Establishment Clause, which says that Congress, but we read as just like government, shall make no law respecting an establishment of religion. So exactly as you said, Melissa, when Maine made this change, it made the change because it was concerned about Establishment Clause problems with actually subsidizing religious education. But the flip side is that if the government chooses not to

support religion, it may, and today, given the sort of trends in the jurisprudence, definitely will encounter the argument that it is violating the First Amendment, and specifically the First Amendment's protection of the free exercise of religion. In addition to Espinoza, the court has decided cases, both free exercise cases like Locke versus Davey, in which the court held that Washington state could prevent its state scholarships from being used for those studying for the ministry without violating the free exercise clause. And then an establishment clause case called Zellman versus Simmons-Harris, in which the court held that a state program that gave parents vouchers that parents could choose to use at

religious schools didn't violate the establishment clause. So I think you have cases that, you know, actually gave states some leeway to do things either to subsidize or to choose not to subsidize religion with, you know, what Kagan called in a clip we'll play in a minute, sort of some play in the joints giving states some reasonable discretion to try not to do too much endorsement of religion in ways that would run afoul of the establishment clause, but also not to so restrict, you know, religious exercise that they would potentially, you know, run afoul of the free exercise clause. I should say that Nelson Tebbe has a great 2008 article called Excluding Religion that

kind of identifies this tension and argues, well, government should be able to deny funding to religious entities subject to certain limits. But I do think that was and is the correct way to reconcile these two provisions in the First Amendment. And yet the court obviously is in a moment in which it is much more concerned about protecting free exercise than it is about limiting establishment. So I think that going into this argument, my impression was that there was a strong sense that Maine, given the kind of direction that we are talking about right now, that Maine was likely to lose this case and nothing transpired during the argument that changed that impression, at least for me, right? Notwithstanding the really excellent advocacy of Justice Elena Kagan.

So let's play some clips from the argument. And as you say, Kate, Justice Kagan was especially active in this argument. So let's play a clip where she very much acknowledges the tension in the court's cases in this arena and indeed the tension between the two religion clauses. So let's play that. I mean, Zellman was a case in which the question was, could a locality implement such a program? And the question here is different, is does the locality have to implement such a program? And what we have often talked about in our First Amendment religion cases is this idea of playing the joints,

that not everybody has to follow the same model, and that there is some amount of funding which is neither prohibited by the First Amendment nor commanded by the First Amendment. And essentially what Mann is saying here is like, oh, well and good if a locality or if a state wants to do this, but we weigh the interests differently. And shouldn't we be allowed to weigh the interests differently? So I thought she was really effective there. And I thought she was also really excellent in identifying this cross-cutting principle in constitutional law, which is that the state doesn't have to subsidize the exercise of rights, kind of for better or worse, right? Like think about Harris versus McCrae. You know, even when abortion was considered

a meaningful constitutional right, the Supreme Court held that there was no requirement that the ability to exercise that right be funded by the government. That's the case in which the court upheld the Hyde Amendment. There was a lot of Rust versus Sullivan energy here as well. Like, yes, you can get state subsidies, but you cannot deploy them for the purpose of advising individuals about abortion. Let's play a clip here about Justice Kagan sort of drawing this parallel to lots of other areas of constitutional law. The status use concept is really a concept that applies in subsidy cases. And what it has been intended to say is that the state generally doesn't have to subsidize

exercise of a right. You know, we can't put you in jail for saying something. We also can't deprive you of an unrelated benefit for saying something. We can't say you don't get food stamps because we don't like your speech. But that doesn't mean we have to pay for your speech. And we do that all over the place in constitutional law. We do it in the free speech clause. We do it in other areas as well. And so the question here that the status use distinction raises is, why is religion different? Why does the state have to? Not like some states want to, but this state doesn't want to. Why does

the state have to subsidize the exercise of a right? So effective advocacy, pointed questions from Justice Kagan, Elena going to Elena. Justice Breyer was also going to Justice Breyer. And Justice Kagan was maybe going to be quietly enraged as this was happening. So let's play a clip of this. It's her private choice. You cannot refer to him as a number. I mean, you cannot insist that the Social Security Administration refer to you by a name rather than a number.

Forget it. Forget it. Go on to Justice Brier. I mean, Zellman was – He basically interrupted her when she was actually on a roll and getting things moving. And he – to be fair to Justice Breyer, throughout the argument, he did raise some very important points. He noted that religious schools may have religious objections to sexual orientation or may teach principles that are out of step with public

commitments to issues like gender equality. He also noted that a program like this one, if it were to be extended to parochial schools, might present entanglement problems, the establishment clause. And he also noted that it's going to be hard to have a program like this one in a society where religious pluralism is a real thing. But the greatest defense of him is that he ceded his time in that excerpt back to Justice Kagan. He did give it back to her that one time. But I mean, this is the point. Like, I mean, he's got lots of good arguments. Why do they take four and a half minutes to tee up? The windup? Oh, my God. Oh, my God. The windup. I mean, like, you better hit it over the plate every single time with a windup like that, my friend. And does he, Melissa? I mean, like, you know, I think his batting average is not quite

Justice Kagan. So here's a clip of Justice Kagan making the very same points in under five minutes. The point here, I suppose, is this, is that some states would, you know, have such programs and love them. And another state says, for the reasons that Justice Breyer gave, you know, have such programs and love them. And another state says, for the reasons that Justice Breyer gave, you know, we think that this would be incredibly divisive in our community. And you can think of a wide variety of reasons why that would be. It would lead to too great entanglement. It's not good for the religion itself. Or other people in our community won't understand why we're funding this program.

I mean, these schools are overtly discriminatory. They're proudly discriminatory. Other people won't understand why in the world their taxpayer dollars are going to discriminatory schools. For any of a number of reasons, a state can say, we don't want to play in this game. And the question is, isn't this play in the joints idea, wasn't it specifically understood to allow different kinds of solutions in different sorts of areas? Okay, so where do we think the court is going here? I think the court is basically going to limit Locke versus Davey to its facts. Other justices might be inclined to just

hashtag YOLO and outright overrule Locke v. Davey. The Chief Justice seemed inclined to limit Locke to its facts and say it just concerns the education of the ministry, but who cares? Because he is the Chief Justice in name only, not the Chief Justice for real for reals. Again, I think even limiting Locke v. Davey to its facts would be a sweeping change in the jurisprudence. And it's also worth noting the incrementalism of the Roberts Court as they do the most, right? So this started in 2017 with Trinity Lutheran versus Comer. And then it was just like, it's just playground resurfacing and old tires, no big deal, like not a big deal. And, you know, Kagan and Breyer were on board with that. And

Sotomayor and Ginsburg were like, what about the establishment clause? Like, you know, what about the separation of church and state? Everyone thought they were hysterical lady parts, Cassandra's all. And then you go forward, you have Espinoza versus Montana, and suddenly like anti-Catholic fervor comes into the picture. And there's a sort of weird racialized cast to all of this that gets talked about. And that was also, I think, present in some of this. Many of the briefs in favor of the parochial schools talked about how the limitations on parochial schools had earlier been animated by anti-Catholic fervor, which raises a question, like, you know, at what point can you actually cleanse the state of its past wrongdoings, right?

Can the state ever make recompense for what it has previously done in the past? And, you know, again, that might be worthwhile given the debate we're having in our country about whether we can actually be honest about our history. And, you know we're always going to go back and talk about this history of anti-Catholic fervor when we talk about school choice and vouchers, but yet we're not going to talk about the other parts of our history. And that's a problem. And I raise this only because in this debate over parochial schools, critical race theory entered the chat. So can we talk about that? I just feel like we have been waiting for it. Like you listeners have been waiting for it. We have joked about Alito raising critical race theory. I'm not sure I thought the day would

ever come. It came. Of course it came. It was cancel culture, critical race theory. I mean, just like a list of grievances and they've all come up in this term. Yeah. So let's take a listen with a little bit of the lead up to the interjection of critical race theory for some context. Clearly, those kinds of schools would be doing something completely inconsistent with a public education. But as of now, that would not prohibit a parent from getting funding to send a child to one of those schools? So because those are hypothetical situations that the legislature has never had to confront, it hasn't addressed that in the legislation. But there's no doubt, Your Honor, that if a white supremacy school tried to participate in Maine's program, the legislature would swiftly act to say, no, you know, beyond being

religiously neutral, you also can't teach principles of hatred. I understand that. But as of now, the only thing that you want to make sure that the schools that are covered by this cannot do is that they can't inculcate religion. Yeah, I mean — Even if it's a — you know, even if it's a religion that promotes tolerance of all religious beliefs. If it's religiously based, no. Again, I mean, I don't want to quibble with words, but it's not just that it's religiously based, no. Again, I mean, I don't want to quibble with words, but it's not just that it's religiously based. It's that it's instilling religion in the children

who attend to that. And that is because that is the defining characteristic, and I think this Court has recognized that that's a defining characteristic of a public education. And so that is the thing that the legislature has controlled for, because that's what actually exists on the ground. We actually have schools that instill religious beliefs. We don't have schools that are instilling Leninism or white supremacy. But just to follow up on that point, you're confident that that kind of school would not be funded, a white supremacist school, because it's outside the bounds of your program.

Is that right? I mean, yes, Your Honor. I think it's unfair for a legislature to be expected to legislate against every hypothetical outlandish situation that could come forward. So it's incredibly unlikely that we would ever have a white supremacy school applying to become part of our public school program. But knowing what I know about Maine and our legislature, that school, a way would be found to ensure that that school is not allowed to participate. Could I follow up? I'm sorry. No, please. Go ahead.

Would you say the same thing about a school that teaches critical race theory? Whether that school would be eligible? Yeah. So I think that that is something the legislature would have to look at. I mean, that one's closer because, frankly, I don't really know exactly what it means to teach critical race theory. So I think the main legislature would have to look at what that actually means. But I will say this, that if teaching critical race theory is antithetical to a public education, then the legislature would likely address that.

Ye gods, what to say. Like, literally, what to say. It is peak Lito, woke Lito, troll Lito, probably yet some unnamed Alito personas, all rolled in to one. This is Fox News Alito. Megan Kelito. Fox Folito. Oh, my God. All right. So some other highlights we should note.

Glow SCOTUS managed to sort of temper the rage that critical race theory SCOTUS inspired. So here's Justice Sotomayor and Justice Kagan tag teaming to good effect, showing Justice Breyer what it means to be both an effective colleague and an ally. They're getting more than other parents. Most other parents have only one choice. Send them to the public school if it exists. Send them to the contracted school that exists, or don't. And that's always true with the school choice program, Your Honor. That was true in Zelman.

That program was specific to the school choice program. I mean, one way to make Justice Sotomayor's point, I think, is to ask whether this is different from a typical school choice program. You know, this is not a state or a locality basically saying, we just love choice, we think everybody should get as many choices as they want. This is really a default program for a very small number of students living in isolated areas where the state has decided it cannot, it does not have the resources to provide public schools.

And the state would wish to say public schools for everybody. A completely foreign idea that Maine invoked, which, you know, yes, he has this quirky idea that the Establishment Clause doesn't constrain the states, but surely he realizes that it is in the Constitution. So his like sort of faux cluelessness about where Maine might have derived this principle of anti-establishment was like a little hard to swallow. We also have to play one more clip from Amy Coney Barrett, right? This raised a lot of eyebrows during the argument. So maybe let's play the clip here. 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? Like her point was a very general one about how the state even knows about what is being taught at schools.

But her examples were definitely eyebrow-raising, right? To first refer to the Jewish-Palestinian conflict rather than the Israeli-Palestinian conflict, like, that's off. And then to hypothesize that the school had a position on Jews was like, what does that mean? You know, you know. It's just like to suggest, it just does suggest to me that she has this kind of siloed existence in which, I don't know, it's like a

normal thing that just springs into your mind to have a position on Jews. Like, what was that about? It was just the, referring to it as the Jewish-Palestinian conflict was just extremely striking to me because it just calls to mind all of this kind of, you know, rhetoric on the right about, you know, Jewish people being kind of like a separate nationality and ethnicity, which has just like a bunch of really unfortunate off-putting, troubling connotations. And again, just that that's the phrase that comes to mind is some indication about the people she's listening to and the people that she is in conversation with that that was how she chose to describe it.

I totally agree. We've all been giving lectures, I feel like, where you reach for an example. And I'm not sure you're always coming up with the best examples in the moment when you're trying to make a point. But it says something about where you are, your example. And I'm not sure you're always coming up with the best examples in the moment when you're trying to make a point. But it says something about where you are, like your vocabulary, if those are the examples that you reach for. So it seemed like a revealing moment to me. I'm willing to give her the benefit of the doubt.

You make a misstep, but then just go back and correct it. Say it again and say it the right way. I mean, if you know what the appropriate way to say it is, how to refer to it. Which I think is your point. Anyway, okay. So, yeah, I mean, I don't – big bottom line takeaways.

Like, again, I didn't think there was much suspense going in about how this case was going to come out. It does feel like – Again, I just come back to the incrementalism. Like, first we're putting down old tires and playgrounds. The other thing that was also, I think, really, really interesting here was this whole idea that, you know, if the states don't want to subsidize religious schools, just don't have this program. Don't subsidize any private schools. But obviously, that's a problem in Maine where there may not be public schools to go to. So they're sort of between a rock and a hard place. The other thing I thought was like super, super striking was the kind of anti-elitist, anti-intellectual fervor among some of the justices.

So there's this really striking exchange. Parents want to send their child using this money to an elite private school, Exeter, Andover, Miss Porters. That would be okay, right? Yes, those schools would likely be approved. And they would provide the equivalent of the – a rough equivalent of a public education? Yes, they would.

They would? Yes. The defining feature of a public education is that it's religiously neutral. Now, you could go to – So when you say a public education, all you mean is a secular education. That's what you mean. That is the defining feature. And what I would say, Your Honor, is that if you went to — So you have to have a compelling interest in providing

a purely secular education in the funded — in the schools to which these students wish to go. Your Honor, if you went into any private school, even take Andover Academy, I mean, certainly there are going to be trappings there that are going to be much different than trappings in a public school. But at the end of the day, your chemistry class are going to be trappings there that are going to be much different than trappings in a public school. But at the end of the day, your chemistry class is going to be taught the same as a public school chemistry class. Your science and math classes are going to be taught the same way. And the one thing that's not going to be occurring in those schools is that they're not going to be inculcating children with a particular religion. So, yes, an Andover or a Phillips Exeter may be different from Bangor

public high school in many different ways. But what they share in common is the most important feature, which is that they are not inculcating religion. Some of the justices are basically like, come on, give me a break. There's no way that's the same as Bangor high school. And that's probably right. But it was just sort of like we're basically subsidizing elitism at the expense of these homespun parochial schools where these parents just want to provide their children with a standard education, like a homespun education where occasionally they learn about Jesus. So, yes, it seemed like – I think the intent was an anti-elitist one, but it seemed to reveal such a profound elitism actually. Yes. The sort of like – the kind of eye-rolling like, oh, sure, that's comparable to your public high schools. We all know what Phillips Exeter is.

Like I don't know what Phillips Exeter is. I mean, yes, it's a fancy private school. I'm aware of that. But I thought the main lawyer also, I mean, just was like, look, if we're asking about the key questions, like do they basically teach math in the same way? Like that's the essence of an education. And, yeah, they're the same. But Alito's, like, eye-rolling about how ridiculous it was to suggest some parity between the two, I thought revealed, like, a truly despicable kind of elitism, actually, in the guise of anti-elitism.

I mean, that's the best part of it, right? I mean, and the Chief Justice, like, we talked about the Chief Justice's connections to Cardigan Mountain School, which is permitted for purposes of this program. Like, you know, he noted, what about a religious school that's not like super religious and has been denominated sectarian? Why is that okay? Why can't we go further? And it was just sort of like, the school your son attended, of course, like, of course. And the whole thing was just deeply, deeply concerning. And so again, SB8 is not the only way that we are slouching toward theocracy. I guess that's the note we end on. Yeah. So we will be taking a break for the holidays. We will still have episodes on your feed every week, but we might be slower to respond

on email, et cetera. Thanks so much to our producer, Melody Rowell. Thanks to Eddie Cooper for making our music. If you are still looking for some holiday gifts, might we humbly suggest some new merchandise. There's several lines, some about the stench from the Supreme Court, some assume I disagree, Some, some geniuses. Some, may I finish my inquiry? Really many different lines for many different people. And if you'd like to sign up to support the show, you can do so at glow.fm forward slash strict scrutiny. See you later.