Strict Scrutiny - The Non-Existent Establishment Clause

Episode Date: April 18, 2022

Leah, Kate, and Melissa catch up on SCOTUS news (including more shadow docket activity and shady Thomas behavior) [1:04] and preview the cases the Supreme Court will hear in their last sitting of the term [35:54]. The justices will be going out with a bang, hearing cases about veteran benefits, Miranda warnings, immigration, and of course, religious liberty. Follow us on Instagram, Twitter, Threads, and Bluesky

So we're recording on Friday and... It's Thursday. It's Thursday. No, it's Wednesday. Oh, my God. What day is it? We always record on Friday. We have no idea what day it is.

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 Thanks. 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 Kate Shaw. And I'm Leah Littman. And we are now staring down the end of this term and quite possibly, even likely, the last 10 weeks in which Roe versus Wade is still the law of the land and women have a constitutional right to decide to obtain

an abortion. So we thought we would start out on that note. Reminder, everyone, the clock is ticking. Yeah, no, that was a real light, positive note to start out with. Stay tuned, everyone. The Supreme Court is about to start its final argument session of the year, the April session. The court hears seven sessions of arguments over the course of the year, beginning in October and ending in April. And then there's a tradition or a norm of releasing all opinions and all argued cases by the end of June. All right.

So with that in mind and knowing that constitutional law, as we know it, is about to change massively, we're going to go through SCOTUS News today and highlight some of the cases that we're watching in the April sitting before everything turns to ash. So to bring the podcast back to a real positive note, let's start with some news. I am. I am working real hard here. And the positive news is that KBJ had a day or we had a KBJ day. So Justice Katanshi Brown Jackson was confirmed by the Senate to the Supreme Court in a bipartisan vote. Republican Senators Romney during the entire proceeding. Like, I honestly thought he was going to break some cameras with that like high watt smile that was just projecting from the dais. And, you know, he had some very important and memorable contributions throughout

the proceedings. We wanted to highlight one set of statements that occurred during the debate within the Judiciary Committee on Monday as the Judiciary Committee was voting on her nomination. How qualified do you have to be, double Harvard? How qualified do you have to be, clerking at all levels of the federal judiciary? How qualified do you have to be? Three times confirmed by the Senate in a bipartisan manner. And so, I have to say, today is the birthday of a great poet named Maya Angelou. And so I'm just going to end with those words. Why does this poem strike a chord with so many Americans? Because they feel it to their bones.

And so this is in honor of Maya Angelou and the next Supreme Court Justice of the United States of America. Happy birthday, Maya, Dr. Angelou. You may try to write me down in history with your bitter, twisted lies. You may trod me down in the very dirt, but still, like dust, I rise. Rise, Sister Jackson. Rise, Judge Jackson, all the way to the highest courtors will rejoice. And we will say, Lord, this is a day that you have made. Thank you. Also, another highlight of the confirmation were the pictures

of now Justice Designate Jackson and President Biden watching the confirmation vote. I mean, those were so just very happy to watch. I think he was just like nothing is going to I think he's a little bit like Cory Booker, like nothing is going to steal my joy. I don't care. She's got enough. She's got a couple of she got three Republican votes, which the White House was clearly really, really committed to. And even if not necessary for the White House is very much a cherry on top, you know, more bipartisan votes than any of the Trump appointees to the court. I think that's significant.

Is it churlish of me to just like – because I felt that she definitely deserved bipartisan support. I'm glad she got the three, but she really should have gotten more. She was like a really superbly qualified candidate. She should have gotten more. And part of me was sort of low key wanting like let them all vote no and let Kamala Harris cast the deciding vote and make this like truly historic to have the first African-American woman slash South Asian woman to serve as vice president basically cast the deciding vote for the first black woman to sit on the court.

Or is that just churlish of me? I just think it would have been another basis on which to discredit her as a legitimate justice because there's not been a Supreme Court justice confirmed with a tied vote before. No, of course it is. But it's just another reason to do it. And there is this fringe idea that there's something constitutionally suspect about a tie broken by the vice president with respect to a Supreme Court justice that has been like in the conservative ether. So to my mind, it's actually better that no additional fuel was added to the discrediting fire, though obviously you're right. It's not the fact that it was 53 does not, you know, at all mean that she won't still be attacked.

I also, my churlish point actually is that, and this is like me channeling Justice Stevens, I found something a little bit too political about her watching the vote from the White House. I knew you were going to say that. I knew you were going to say that. Like you didn't like the party. You didn't like the photos. If Barrett and Trump had been watching the vote in the same way, it would have made my skin crawl a little bit. And I mean, Stephen's position was always

that once the nomination is made, there needs to be a clean break between president and nominee. And whether, I mean, nobody in the modern era has really observed that. But after the vote, I mean, it's, you know, of course, only just after the vote that they're still there.

But there was part of me that was like, I think that maybe she should have watched from somewhere else. Why do you think the administration did it? I mean, because surely they understand the optics of this. I think that they understand that, like, Trump did this with his nominees. He sure did it with Barrett. And like, it's, you know, no, we're not, I'm not going to, we're not going to advocate.

This is me channeling the Biden White House. Like, why advocate some kind of unilateral disarmament if there is political benefit, which I think there surely is to the president and this incredibly charismatic historic nominee publicly watching the vote together, like, why not? But I don't think I've ever seen anything like that, the president and the nominee watching the vote come in. I think you're right. I think it is a political statement. This is the high point, I think, of his domestic agenda, the courts and in particular this nominee. Yeah, so they would like to focus the public's attention maximally on this. And I think that's good politics for sure. But from the perspective of an independent court, like.

Very churlish of you, Kate. And in that vein, speaking churlishly, let's talk about the White House ceremony, which if you didn't like watching the vote come in alongside the president, Kate, you were really not going to like the White House ceremony, which was like a carnival. I couldn't not like it. It was so. And also, let me just say that, you know, Stevens objected to that as well. But with Sotomayor and Kagan, there were those ceremonies as well. They took their formal oaths at the court, which I expect Justice Jackson will do, you know, once Breyer's retirement is effective at the end of the term. And so that I think, you know, a ceremony, a party at the White House, and then the formal investiture happening at the Supreme Court, I think that's a perfectly permissible line. The watching was, I think, was a little

bit new, but the ceremony or the party, especially on this like insanely beautiful, like sunny April day was like just so joyful. It was so gorgeous, beautiful day, like cerulean skies, perfect weather, a ceremony that was really more of a party. I mean, like if Earth, Wind & Fire had been there, I would not have been surprised. Like. I mean, like if Earth, Wind & Fire had been there, I would not have been surprised. Like, I mean, this is definitely something that should have had a band. But the nominee now confirmed justice, Katonji Brown-Jackson really brought her champion original oratory skills to the podium. She gave the most amazing speech and we wanted to highlight a couple of snippets. To be sure, I have worked hard to get

to this point in my career, and I have now achieved something far beyond anything my grandparents could have possibly ever imagined. But no one does this on their own. The path was cleared for me so that I might rise to this occasion. And in the poetic words of Dr. Maya Angelou, I do so now while bringing the gifts my ancestors gave. I, I am the dream and the hope of the slave. So I love the invocation of Maya Angelou here and this idea like, you know, we are our ancestors' wildest dreams. And then there's this other moment that I thought, again, sort of underscored the historic nature of this particular nomination. So here she is again. So as I take on this new role, I strongly believe that this is a moment in which all Americans can take great pride. we have come a long way toward perfecting our union. In my family, it took just one generation to go from segregation to the Supreme Court of the United States.

This gave me big RBG vibes, that line that Ginsburg, I think, said in almost every statement she made about her nomination to the court, that in one generation, her family had gone from bookkeeper to Supreme Court justice. I thought this was Jackson sort of evoking the same idea, only sort of linking it to the stain of segregation. And like this was bigger than her family. It was about the country and the country's progress. So I thought this was just chef's kiss moment. Very nicely done. Full marks. Her speech was great. The White House did a terrific job putting it together. It was also just like luminaries like filled the White House lawn. And also I, this is another slightly trillish point. I was just really happy they could do it outside because

I'm sorry, COVID is back. Like it is back in DC. I was worried about a super spreader event if they were going to do it inside and the weather. Mother Nature wanted a proper party and was like, I'll give you a beautiful, an unseasonally beautiful... Mother Nature's like, I'm done with the mask of red death. We've done that before. Yeah. So, so no, it was all, it was a wonderful occasion. And yet there's always more work to be done, right?

So after the elation of all that had worn off, our minds immediately turned to the burning question of now that the White House has successfully completed and done a terrific job of getting Justice Jackson confirmed. Where are the remaining lower court nominations? You guys are so mean to Joe Biden. You were like Glenn Gary Gunn Ross. Always be closing. Like this man is always having to show his work. Right.

Well, I mean, clock is ticking. They got to walk and chew gum. What would you say if he just left a bunch of court of appeals seats vacant at the end of the administration? I mean, can he have a weekend? Good job, Joe. Can he have a weekend? You can't have a weekend. We are so close. What is a weekend? You're like the Dowager Countess of Grantham? I am. No weekends. I think particularly, you know, as senators start going off to campaign and there are other things they are going to want to do. And like, what if, again, worst case scenario, they put up one nominee and that nominee can't

get 50 votes? I mean, there are a lot of things that they just need to build in contingencies for. And I just think it would be malpractice to leave any court of appeals vacancy open. So Leah, to the Biden administration, stay on your hustle. Yeah. And I mean, I think that's true about the district court, too. But like, I don't think there's any chance they're going to actually fill all the district court vacancies, which is a real problem. But absolutely, the court of appeals. And there are a number of vacancies. There's still a handful of nominations in the pipeline. I think Judge Childs're going to actually fill all the district court vacancies, which is a real problem, but absolutely the Court of Appeals. And there are a number of vacancies. There's still a handful of nominations in the pipeline.

I think Judge Childs is going to get her D.C. Circuit hearing later this month. So there are a few, but just a few. So we're recording on Wednesday. And actually, having taken, I guess, the weekend off, the Biden administration has put up another slate of judicial nominees, including two for courts of appeals, the Seventh and the Ninth Circuits. So this is good. This suggests to me that the gears are turning again post-Jackson, and hopefully they will continue to turn. So can I give a shout out to one Nancy Maldonado, who's been nominated to a district court seat in Illinois, and who was my Team Florida teammate at the National Academic Bowl competition in 1993. So Nancy, you won't remember me, but I remember you. And congratulations, sister. Good for you. We're really proud of you

back here in Florida, DeSantisville. Florida women making that state proud, right? Sunshine State doing very well in the Biden administration judicial nomination. So for every Florida man, there's a Florida woman. Yeah. So now I get to be churlish a little about the slate of five judicial nominees. Five, not enough, right? We need double digits, right? From here on out in order to close this.

I mean, there are just like several court of appeals vacancies that have been kind of open for a really long time. The Fifth Circuit, the Sixth Circuit, the First Circuit is going to have three vacancies pretty shortly. I mean, there is now a second DC Circuit vacancy. These are seats that need to be filled. And also on this slate, the two Court of Appeals nominees are current district courts. And so the administration is creating additional vacancies with these nominations that, you know, I totally understand it's not going to be possible to

fill every district court vacancy, but it sure would be nice to fill a lot of them. And also this slate of nominees is on the, let's say, like slightly older side for Biden nominees, you know, 50 and 54. There are also people who worked as prosecutors and in law firms. So a little bit less of the professional diversity, you know, we've seen from Biden judicial nominees. And I just don't know if that is going to be a tactic that they are going to make leading into the midterms about trying to get nominees quickly confirmed, maybe trying to avoid any tie breaks or things like that. But it would just be kind of sad to me if they left these vacancies open and thereby required

themselves to kind of abandon these other priorities that we've been so excited about in seeing the slate of nominees that have come forward thus far. All right. So here's hoping we see more longer lists, younger lists, more progressive lists in April, May, June. OK. Wait, wait. You know that when Lindsey Graham listens to this, he's going to be the next hearing. He's going to be like, do you know that strict scrutiny is pushing a slate of progressive nominees, rabble rousers from wherever? Well, unlike our friend and former guest, Ellie Mistal, we did not, unfortunately, get called out by name by any senator during the confirmation hearing. So maybe that should be our objective.

I want to see myself on a poster behind Ted Cruz at some future judiciary committee. And your racist Leah. Exactly. Exactly. Exactly. Okay, so let's pivot to first a little shadow docket activity and then to the cases the court is slated to hear during this sitting. So first, significant

development on the shadow docket, which is that the Supreme Court put back into effect a Trump-era Clean Water Act regulation in Louisiana versus American Rivers. So this particular case involved a challenge to, as I said, a Trump-era regulation that had limited states' ability to reject projects that might involve discharges into the nation's waters. Now, when the Biden administration took office, they said they were going to revisit the regulation, but didn't ask the courts to vacate the previous regulation while they worked on a new one. One court did so anyway, and that is blocked the Trump-era regulation, and the Supreme Court brought that regulation back into effect. So the decision here was 5-4.

Justice Kagan wrote a dissent for the four liberals on the court. Just kidding. That's a joke. I'm not very good at delivering jokes. That was my attempt. The chief justice who joined the dissent is not a liberal, despite the fact that people will call him one for joining the actual liberals on the court. But it is, I think, significant that Roberts joined the real liberals here, right? You know, as our friend Steve Loddick pointed out in The Times this week, this is the first time he has sided with the actual liberals in their critique of what the court is doing on the shadow docket. So he has voted with them in previous cases on the shadow docket, but he has conspicuously not joined the writings

of Justice Kagan in particular, calling out the majority for the way they are refashioning American law in this, you know, in the shadows kind of way. And I think Robertson maybe had enough, potentially. I mean, not that it matters, because Roberts having had enough doesn't mean the court won't just keep running roughshod over precedents and practices and doctrines. But, you know, him calling them out does seem like a significant development to me.

I mean, it just feels like he can shout into the void, too, and they just don't care. It was notable, though, that in the dissent, Justice Kagan referred to this as the emergency docket, which I thought might have been a nod to her colleague, Justice Alito, because that is his preferred term for the shadow docket. And I think in earlier writing, she had actually referred to it as the shadow docket. So this was a very conscious change. And maybe that's how she managed to solicit and obtain the chief's vote. But she criticized the court's use of the emergency slash shadow docket in her dissent and noted that it provides a stay pending appeal and thus signals its view of the merits. True, even though the applicants have failed to make the irreparable

harm showing we have traditionally required. Also true. That renders the court's emergency docket not for emergencies at all. The docket becomes only another place for merits determinations. Extremely true, except made without full briefing and argument. Yes. Yes to all of this. Yeah. So yes to all of it.

And there was also something kind of darkly humorous about the timing of this order, which is that it came the day after Justice Barrett appeared at the Ronald Reagan Presidential Library Foundation and gave a speech that, you know, once again, following previous speeches she has given and that Thomas has given and that Alito has given, kind of pushing back on the idea that the court is a bunch of political hacks, as she put it in a previous speech. And here she said, look, for people to understand why the court isn't political, they should just, quote, read the opinions. Narrator voice, there isn't an opinion, Amy. She didn't bother to explain any of the reasons why she and the court were bringing back a Trump Clean Water Act regulation. So to say, read the opinion and then there isn't an opinion. I mean, it's just like, is this all just a giant troll? I feel like I wonder that many times. This was a this you meme.

That's what this was. Anyway, speaking of SCOTUS being not political, close on the heels of the KBJ hearings where Republican senators not so subtly telegraphed the looming assault on the right to contraception and the right to marry and all of these other rights that are implied from the 14th Amendment's guarantee of liberty. We had Alaska Senate candidate Kelly Shukbaca talking with supporters about using the U.S. Postal Service to prosecute citizens who are using the morning after pill. And then she goes on to implicate the prospect of the Postal Service maybe prosecuting people for using birth control more generally. So here's a little snippet from Twitter that has some of the audio. It's a little grainy, but you can get the gist of it. So, yeah, I need to think about that more. I don't.

I would want to make it illegal to send those pills at all. So you can't order those pills. Right. And I know from my time working at Postal Service that we can actually stop sending those pills through the mail. We can actually block them in the mail so if we were to pass that kind of act the Postal Service can block them using data because was on the team of the Gulf Coast model creating so a criminal act of a recipient the drug maker the sender there's a whole chain there right that we would have to prosecute it's an interesting question that I'm looking. So then is birth control fall underneath that same category kind of thing?

Well, it would. Yeah. Because some people who aren't read up on this, all birth control practices have to be for the patients. That is the third step in the birth control process all of this i think underscores a point that i have been harping on like a cassandra that this is not about abortion or at least not only about abortion it's not going to end with abortion there's more to come so if you think you can just like deal with your lady part separately and this doesn't affect you, you are dead wrong because they're coming for a lot of other things. The end. End Cassandra rant. But not the end of these kinds of developments, right?

Because also last week in Texas, we saw the arrest and detention of a woman for allegedly self-inducing an abortion. The case was later dropped after many people noted that it was unclear what law she was being prosecuted under because Texas is not supposed to prosecute women for having abortions, right? That is one of the conceits of SB8. But she was- But it also wasn't clear she was being prosecuted under SB8 because SB8 is not a criminal law. No, right. So it wasn't clear what law she allegedly violated. And I'm not sure if that's the fact that there actually wasn't one in the she allegedly violated. And I'm not sure if that's the fact that there actually wasn't one of the books led to the dropping of the charges. But the fact that she was arrested at all, I think, was deeply chilling. Yes. And I think it underscores

something that, again, we're talking about the move to a post-Roe world. And pre-Roe, I think it's important for people to understand the state just had more limited capacity to arrest and prosecute people and uncover possible legal violations. Like we are just more heavily monitored. There are like more avenues for states to uncover, you know, potentially unlawful abortions than there used to be. And I am just yeah. There's also the delegating of the enforcement authority to private parties, which never happened before. So it wasn't like your neighbors could tell on you either. Yeah. Now they can. Not to be outdone, Oklahoma enacted a total not ready for the end of Roe, in part because I don't know that everyone fully appreciates what's going to happen at the end of June and what the dismantling of Roe, the explicit overruling of Roe, conflicts that we're going to see around abortion that come up. This is not going to be the neutral settlement that Justice Kavanaugh suggested in the Dobbs oral arguments. No matter what happens and no matter what the Supreme Court does, these laws are going to be on the table and it's just going to be a new fresh round of litigation with new

questions and new ways of constraining individual choice. The Constitution is neutral, and so women can be locked up for obtaining health care, right? That's what that means, right? Neutrality. Now, I'm just checking. What these laws have also brought home to me is no matter what the court does, you know, the prospect of Roe being overruled is something that is going to be back on their docket quite quickly. Like, let's say they don't actually formally overrule Roe and they just say, well, we're going to allow states to restrict abortions and prohibit abortions at some points before viability. I mean, within a term or two,

there's going to be a total ban on abortion back on their docket because all of these states are chomping at the bit and some of the more insane lower courts are going to allow these laws to go into effect once again the court eviscerates Casey if that's the path that it chooses. just sitting back and waiting to see what happens in June here in Michigan. Governor Gretchen Whitmer has brought a lawsuit seeking to have the state Supreme Court invalidate the state's law that would prohibit abortions in the event that Roe versus Wade is overruled. And the governor has asked the Supreme Court to invalidate that law on state constitutional grounds. There has also been a separate lawsuit filed by Planned Parenthood asking the courts to invalidate that law on state constitutional grounds. There has also been a separate lawsuit filed by Planned Parenthood asking the courts to invalidate the law as well. And I appreciate this energy of Democrats just not kind of laying back and being like, yep, this is going to happen.

There's nothing we can do, right? Maybe it would be nice if you would vote for us, even though we're not like doing anything about it. She's actually doing something and using her authority under state law to try to protect access to abortion and big, big Gretsch energy. She is acting like every fucking week is shark week. And it is, you know, from here until the end of June and after two. While big Gretsch was getting ready to bring the fight on reproductive rights to Michigan, Justice Thomas decided to show us all

how deeply committed he is to an apolitical, nonpartisan, completely principled Supreme Court by appearing with Georgia Republican Senate candidate Herschel Walker. I love this for him. I love that it's like right after all of these Ginny Thomas stories are breaking. And he's like, you know what?

You know what my response is? I am going to be photographed with a Republican candidate for Senate from Georgia. Right. What are you going to do about it? Who gone check me, boo? Not one person. Like this is big DGAF. Right.

Like does not care. You would think he would at least even if he's going to see him, even if he's going to pose for a picture with him, he would lay low for a couple of weeks after these stories about Ginny. But you were right. Why? He's not afraid of anyone checking him. And, you know, I think to sort of Lee's point. He is the Cherie Whitfield of this court. Who going to check me, boo?

Absolutely nobody. The picture is insane. Could they be closer and tighter? Like, I mean, it's very brought up in this picture. Yeah. Having the times of their lives. And Thomas looks fully recovered, right? We were speculating the last episode. He seemed, he sounded fine. No, he looks good. He does look thinner. He looks thinner. He looks like he's lost some weight. I agree with that. But I think just like a note to self and to listeners, we cannot stop being scandalized by this kind of political activity by Supreme Court justices. It is shocking for him to have appeared at an event and posed for a picture with a Senate candidate, with the Senate, you know, as closely divided as it is with, you know, the very real possibility that cases involving the Georgia Senate election could end up before the Supreme Court. I mean, he has obviously supplied a very strong basis for recusal, but, you know, he's the one who's going to make the

call about that. And I have no confidence that the public pressure would necessarily force him to recuse if there were a case regarding this race that ended up before the court. But it's just shocking. That's all. Just want to remind everyone of that. Yeah, it's horrifying. They've normalized it at this point. I mean, like, we're not shocked anymore because, like, this all seems perfectly above board. Did it even register with most people? I mean, I think there was a little bit of commentary about it, but no one is scandalized.

Not nearly as much commentary as there was when people thought Chuck Schumer went out to dinner with Justice Sotomayor and it turned out to be Chuck Schumer's wife. I mean, like, this is basically a campaign photo event. And it's just like, you know, does not receive at least that I've seen any kind of like major articles in the major papers or anything to that effect. And I think it is important to keep talking about this whenever people talk about the court, like just to talk about, oh, the Supreme Court is going to issue this decision invalidating Section 2 of the Voting Rights Act or like limiting it next term in Merrill. And like, by the way, right, like at least one of the people who's going to do that was basically like participating in campaign events for like the georgia republican senate candidate i mean it's just it's appalling you know i agree it's not surprising right it's clear this is just how they behave justice thomas behaves but it's

gross do you think he and jenny talked about this at a high level of generality. She sent him a text, definitely. Right. You must save America from being taken down by the left. And Raphael Warnock and his dog. Raphael Warnock is about to be living off a barge off Gitmo, facing a military trial for sedition right i'm sure that was part of jenny's text and you post for as many pictures as you want because the extreme media is always gonna have something to say about it and we don't care we spent more time dissecting will smith slapping chris rock than we have like this literal assault on an institution of government but exponentially more yeah yeah i mean like will smith was fucking barred from the academy for 10 years. Right.

And Justice Thomas is living it up at One First Street and the real housewife of One First Street. OK, so maybe let's briefly mention one opinion the court issued this week and then we'll pivot to previews of the upcoming sitting. So the court released its opinion in Thompson v. Clark. This was a 6-3 opinion by Justice Kavanaugh with Thomas Alito and Gorsuch dissenting. This case, which we previewed on an earlier episode, was argued by Amir Ali of MacArthur Justice Center. So the case is about whether you can bring a claim for an unconstitutional arrest or unconstitutional seizure after the government dismissed the charges against you, but without affirmatively indicating they were dismissing the charges because they

believed you to be or the court found you to be innocent. The Supreme Court said you can bring a false arrest, wrongful seizure claim under those circumstances where the charges were dismissed against you, even without an affirmative indication of your innocence. Good slash welcome news from the court for a change. All right, let's get into some of our previews. And like I have to say, the March sitting was a little sleepy. They are making up for it with this jam-packed April sitting. So they are going out with a bang. And one of the first cases to highlight is a Veterans Benefits case called George v. McDonough.

This is an important case involving veterans benefits, and it's brought by Mel Bostwick, a partner at the law firm Oreck, who's really made these kinds of cases as well as patent cases a core part of her practice. Basically, the issue here is how veterans can challenge the Department of Veterans Affairs denial of a veteran's claim for benefits. So by statute, a veteran generally can't challenge a denial of benefits once the denial of benefits has become final, which means that the Department of Veterans Affairs has finished its review of the benefits claim. But veterans can challenge a final denial of benefits if the final decision is based

on, quote, clear and unmistakable error, end quote. The question here is whether when the Department of Veterans Affairs denies a veteran's claim for benefits by relying on a mistake, an error, about what the relevant statute means, is that a clear and unmistakable error that the veteran can invoke to challenge the VA's decision? Here, the VA denied a veteran's claim for benefits on the basis of a regulation that a federal court later concluded was inconsistent with the federal statute governing veterans'

benefits. So the denial of benefits was based on a violation of or an error about a federal statute. The question here is whether the veteran can now use that and come back to challenge the denial of benefits. So lots of important implications for this for a really sort of underserved population, veterans, and really interesting questions of statutory interpretation built in here. Okay, the next case we wanted to preview is Vega versus Tico. And I apologize if I'm not sure I'm pronouncing the name right. This is a case about the famous Miranda warnings. So that's, of course, the warnings that police officers are supposed to read you before interrogating you while you are in custody. But really, the case is about whether the Constitution

requires them to do that at all, right? So the question here is whether you can sue police officers who interrogated you while you were in custody but did not read you your Miranda warnings. And you might be thinking, wait, if the Constitution requires the police to read me my Miranda warnings but they didn't do that, isn't it obvious that I can sue? The answer is that the court has been somewhat unclear about whether Miranda is what is known as a trial right, that is, whether the constitutional violation only occurs if the government uses the statements that you made without the Miranda warnings at your trial, or whether instead the constitutional violation occurs when the government interrogates you at all, right, while you're in custody without issuing Miranda

warnings. And now the officer who was sued in this case says the case is about whether a plaintiff can sue based simply on an officer's failure to provide the warnings prescribed by Miranda. But that's not actually what the case is about, because the plaintiff in this case, that is the person who was interrogated without Miranda warnings, says that those statements were introduced at his trial. It's just that he was acquitted at that trial. And note that there was exculpatory evidence in the case, the prosecutors didn't turn over. Tecko was a hospital worker accused of sexual assault, and the only real evidence was the statements that he gave during his interrogation. D.A. and A. evidence that wasn't turned over to defense actually excluded him.

So the question is really whether there's a Miranda violation when the statements were used against you at trial, but you weren't convicted. Not about this abstract question of whether just the failure to give the warnings gives rise to an ability to bring a lawsuit. But either way, right, both the officer and the Biden Justice Department argue that the proper forum for raising Miranda claims is a criminal trial, not a civil damages action. And, you know, the backstory here is that the Supreme Court is very skeptical of Miranda, right? Miranda has been whittled down and limited in ways that really kind of presaged what the modern court was going to do, is going to do with Roe versus Wade, chipped away at it for years before likely this upcoming

spring delivering a final blow. So the Vega case also involves an important causation question. So the officer argues that the failure to mirandize, right, to administer Miranda warnings cannot violate a constitutional right because it is the prosecutor who actually puts the evidence in a trial, not the police officer who interrogates without issuing Miranda warnings. But that's true whenever we're talking about things like fabricated evidence, coerced confessions, etc. And this kind of causation argument would seem to imperil a lot of civil damages actions, right, brought under the federal statute section 1983 that challenge police misconduct,

not just the ones that involve Miranda. Seems like the case could have very significant implications, not only for the future of Miranda, right, these Miranda warnings, but for civil rights litigation challenging misconduct by police officers much more broadly. We should underscore what I said earlier, in case people didn't catch it, the Biden Justice Department is on the side of the police officer and against the viability of this civil damages action against the police officer. Another case that we are watching is Nance versus Ward. This is a very technical but also important case. I'll try to explain the procedural aspects and then the stakes, but it's an area of law that is pretty dense and occasionally

impenetrable. So the question in the case is this. When someone who is sentenced to death is challenging the state's execution protocol, that is how they will be executed, can that person bring the case under the general civil rights statute 1983, the same one at issue in Vega, which we just talked about. Or must they instead bring the case as a habeas petition? Now, the reason why that matters is because Congress has severely restricted the availability of habeas petitions. So if you have to file challenges to execution protocols as habeas petitions, you are subject to all of the limitations Congress has set on habeas petitions. The most relevant one here is the limit on second or successive habeas petitions, petitions

you file after you've already filed one. Congress limited second or successive petitions to two narrow categories that don't encompass challenges to methods of execution. So the bottom line is if a challenge to the method of execution, i.e. the state's execution protocol, has to be filed as a habeas petition, and if a second-in-time habeas petition challenging a method of execution is treated as a second habeas petition, you might not be able to challenge the execution protocols that is how the state will execute you at all. The reason you often can't challenge an execution protocol in your first habeas petition is because states don't finalize execution protocols until you have an execution date. You know, the drug

cocktail changes, the precise rules governing the conduct in the execution chamber change. So you won't know the execution protocol until well after you've already filed your first federal habeas petition. In a prior decision, the Supreme Court in Panetti versus Quarterman had said, well, look, when someone brings a second in time habeas petition that raises a claim and the facts underlying that claim weren't established or weren't in existence during their first habeas petition, they're not going to be precluded from bringing a second habeas petition. But that decision, Panetti was 5-4, and it was the four liberals on the court joined by Justice Kennedy to form the majority. This is obviously a very different court now.

And naturally, some of the frenemies of the podcast have this decision in their sights. Some geniuses, hat tip Elena Kagan, Adam Mortara and Jonathan Mitchell are back, back, back again, asking the court to overrule Panetti in this case, leading me to wonder, is this an example of amicus briefing as Straussian performance art? Like, let me take the most extreme gratuitous position, right, I can in this case and urge the court to adopt it. You may be on to something, Leah. I mean, it keeps working for them. I can see they have reason to believe this is a strategy that will yield benefits. Okay, so next case we wanted to mention was Biden versus Texas, which is the case involving MPP or the Migrant Protection Protocols. This case is so insane, I'm not even sure how to begin to describe it.

I will do my best and you two jump in if I falter because I can't get the words out. But it involves a challenge to President Biden's attempt to end the Trump era remain in Mexico policy, right, or MPP. So that's the policy under which many asylum seekers who crossed the U.S.-Mexico border were forced to return to Mexico to await immigration proceedings. This is a policy we discussed at length in an episode last fall with Elizabeth Weidra and Aaron Reikland Melnick. And it has been a humanitarian disaster as a piece of immigration policy. What happened is that the Biden administration rescinded the policy. A district court invalidated that rescission.

The Fifth Circuit affirmed that decision. And last summer, the Supreme Court refused to put those decisions, which purported to force the incumbent administration to continue to administer a policy that they had sought using, I'm sorry, perfectly legal means to end and which has clearly been a humanitarian abomination. But these federal courts forced the Biden administration to continue to administer those policies. Okay, so the agency responded to that federal litigation by issuing a new decision that purported to address the various mistakes that the district court and the district had. That should be quote mistakes, right? Not actual mistakes, just to be clear. Want to put those quotes there.

Yeah, the scare quotes are not audible. So the agency, what the agency did was it said, okay, you have told us in a totally lawless fashion, you have told us that there are things that we did wrong. So we will play ball and be responsive. And we will just start a new policy process, issue a totally new decision addressing the quote unquote mistakes that you identified in our first perfectly legally sound process. And the district court and the Fifth Circuit take a look at the new decision and say, nope, still illegal. And the reasoning is a little hard to get your arms around, but it's something like this.

The Fifth Circuit basically says, well, this isn't a new decision, even though it calls itself a new decision. It's the same decision and the same policy as the initial rescission and doesn't quite say why. And it can't quite construct a rational explanation as to why, because the bottom line position that it is taking is utterly inconsistent with basic administrative law principles under which agencies are absolutely free to reach new decisions after a court invalidates an initial decision. Even new decisions that arrive at the same policy as long as the agency says this is a new policy, structures it as a new policy development process, and offers explanations that connect to the new policy. So, agency did everything right. It did everything more than right. I think it did

everything right the first time, but it did everything even righter, I guess, on the logic of the Fifth Circuit the second time. And it was still told not good enough. You must retain this lawless, in the first instance, and disastrous Trump administration policy. And I feel like both rounds of litigation in the Fifth Circuit have all the markings of Trollito, right? All over them, right? The Fifth Circuit cited the Supreme Court's decision in the DACA case to support its refusal to allow the rescission to stand in this case. And as a reminder, the DACA case involved a 5-4 decision by the Supreme Court, so written by Justice Roberts, plus the actual liberals. And that decision invalidated the Trump

administration's attempt to rescind the Deferred Action for Childhood Arrivals, or DACA policy. So the non-Roberts conservatives on the Supreme Court hated that decision. And in the oral argument in this case, it is just so obvious to me, I feel like I can script it, right? It is going to be such like, well, turnabout is fair play. You know, you guys said that Trump couldn't rescind this Obama policy to extend deferred action to childhood arrivals. And so perfectly fair for the Fifth Circuit and then us to say that Biden can't roll back this Trump-era administration policy, even though the problems that the Supreme Court identified with the DACA

rescission are not remotely present here, right? The Trump administration both specifically disavowed making a new policy, right, basically did the same kind of two-step that was at issue here, came back after having been told basically to run a new process by a district court in D.C. and rather than issue a new decision as occurred here, just said, well, we stand by the old decision and here's a little bit of like additional justification, but that doesn't even connect up to the original decision. And the Supreme Court said that's not good enough, but basically sent the signal that if the Trump administration had done what the Biden administration did here, which is actually to, is actually to announce a new policy and justify that new policy, it would have been fine.

So there's nothing like a straight line from the DACA rescission, invalidation, and what the court, I am very afraid, might do here or what the Fifth Circuit did here. But that is essentially where we are. Did that make any sense? I mean, I mean, like, I hope it did, because it's just what the Fifth Circuit did here is so shocking on this ground that it's like, I agree with you, Sam Alito is going to be like, you know, Chief Justice made me do this right in the DACA case. And like, that's going to be the vibe at the oral argument. But these two things are not alike, right? Because as you were saying, what happened in the DACA case is at time one, Trump rescinds DACA, courts invalidate it. And then at time two, the Trump administration comes back and says, we're not going to make a

new policy. We're reaffirming the old policy. And so the Supreme Court said, well, if that's what you're doing, if you're just sticking by the old policy, we can only review the explanations you made when you announced the policy that you're still sticking by. And here the Biden administration didn't do that. They're like, OK, you agree, right? You think our first policy is illegal? Fine, right? Here's policy number two, new decision. And totally. And we should say there is, in addition to this, like, complete butchering of basic administrative law first principles, the Fifth Circuit also seems to think that the statute pursuant to which the Trump administration created this discretionary and, you know, I think actually in a lawless fashion created this policy in the first instance, but certainly a policy that no previous administration had ever announced or used. The Fifth Circuit seems to think that the statute actually requires this remain in Mexico policy, which I think as the Biden administration Justice Department briefing makes really clear would come as a complete surprise to everyone, including the Trump

administration, right, for most of the time it was in office. No administration since the statute at issue was enacted has done anything like fully enforce this detain everyone or send everyone to Mexico essentially policy, which the Fifth Circuit seems to think this statute by its plain terms requires. So there is also that statutory argument separate and apart from this administrative procedure argument. And they're both just like so wrong. They're both so wrong. But you know what's so right, Kate? You're the best at pivoting, Melissa. I don't know, but I feel like it's going to be brilliant, whatever it is. What's right is when you're a six to three conservative supermajority and you're

faced with your final sitting of the year and you jam pack it full of all of these issues, including the one you just talked about. And then you said, as a cherry on the top of this Sunday, I'm going to throw a little religious liberty in. So if you thought that this court had exhausted its appetite for religion marshmallow cases with Carson versus Macon, that was the public funding for religious schools, and Ramirez versus Collier, that was the one about spiritual advisors in the execution chamber, and Shurtleff versus City of Boston, that was about letting your religious flag fly on a city flagpole. If you thought that had exhausted their appetite, you, dear listener, would be absolutely wrong. Because as a straight chaser to all of those cases, which the court heard

this term, all of which is a blessed term. It's a blessed term. Blessed, blessed. The court decided to close out its term with a little religious liberty chaser, Kennedy versus Bremerton School District, which considers whether a school may prohibit a public school coach from preying on the field during a school sporting event or after public school coach from preying on the field during a school sporting event or after the school sporting event, and then allowing students to join and perhaps even giving students the suggestion implication that they should join. So in case you're wondering whether it would be impermissible for a public school football coach to do such things, the answer is no. And that's basically a spoiler

alert for the holding of this case, which we don't even have to wait till June to figure out. This is going to end with the embiggening of religious liberty. Lots of questions about what happened to the Establishment Clause, because I don't think that exists anymore. And the only real question is going to be, following all of of this is whether the Supreme Court is going to require the rest of us to submit to prayer as well. So at issue in this case is the government speech doctrine. That's because this is a public school employee and government employees have more limited rights because they function as agents of the state. And the government can pick and choose which views it chooses to advance. The force of the court's previous school choose which views it chooses to advance. The force of

the court's previous school prayer cases is really at stake here. So this is a real sort of starry decisis is for suckers moment, because previously the court had said that school prayer was prohibited at graduation ceremonies and sports games and all of that because of the establishment clause, because of the idea that would be giving the imprimatur of the state to a particular religious view. So that's definitely implicated here. So big starry decisis is for suckers energy. And the school has some pretty strong words regarding the coach's characterization of the fact like the briefs in this case are wild, wild for a lot of reasons, including the fact that some of the amicus briefs include noted sports heroes who also have real big religious energy who are weighing in on the

side of the coach here. So if you're from Florida, you remember Bobby Bowden, who used to be, I think, the coach for Florida State. His son, Tommy Bowden, they're part of the football Bowden dynasty, as it were, filed an amicus brief here. And he's basically like, ain't nothing to see here. It's just a little prayer between friends. And like, let's not let government get in the way of that. Because what is a little separation of church and state unless there is actually a separation, which there isn't. So here we are. Anyway, the school district noted that, quote, Kennedy tells a breathless tale of authoritarian government forbidding private

religious expression, insisting that unless the court applies his preferred legal test, religious practice will be quashed across the country. But his argument relies on a creative remodeling of both the facts and the law. Hypothetical constructs are no basis for adopting sweeping new constitutional rules, end quote. If only that were the case, Bremerton School District. Sounds like a nice world to live in. Wow. That sounds like a world where the establishment clause is meaningful and there is a division between church and state. If only we had a court that did decide the cases based on the facts and the law rather than just fives, right? Then that would be right. So, Kate, I know you

wanted to highlight a brief that's going to go toe to toe with the Tommy Bowden brief. So can you tell us about that one? Yeah, I just wanted to briefly flag there are definitely some pretty mostly vibey amicus briefs, but a very serious like law forward amicus brief was one that Joshua Matz wrote on behalf of a bunch of scholars of law. The other ones are law adjacent. No, not at all. They're like a few more steps removed. It's pretty loose. Yeah.

Vibe forward. Yeah, exactly. That's what those are. No, this one is solid law and filed on behalf of a bunch of scholars of law and religion. And I just wanted to highlight it because, you know, Melissa, when you said this case is going to end with the beginning of religious liberty, I totally agree with that. It's the coach's religious liberty. But this brief, I think, makes the very good point that there are lots of religious liberty and conscience and freedom interests on the other side of the balance here as well, right? Well, there's a student who is an atheist who's like, I feel totally pressured to

get on, like, what is it, the 50-yard line with the coalition? Those are the religious liberty interests protected by what? The non-existent establishment clause. Yeah. But since the court has already basically said that, we've reprinted the Constitution and that is no longer in it, at least they do still care about free exercise. severely undermined by a rule the court announced in which this coach is able to kind of like pressure coerce these students into participation in collective prayer, which is like a theme that, you know, anyway, so. Can I come back to another First Amendment case from a long time ago? So Dale versus Boy Scouts, where the whole question was whether the Boy Scouts could prohibit scoutmasters who were openly gay from being scoutmasters.

And the court was like, yeah, that's totally fine. And it was a question of association and free speech, but also seemed to sort of think about the Boy Scouts as sort of standing in loco parentis and kind of this idea that the Boy Scouts could sort of filter the kind of messages that young men received from these parental-esque figures. Where is that energy here? Like what if you're a parent of the atheist child and you're like, I don't want the coach like praying with my child or giving my child the view that they have to somehow do this to be a part of the team. Like that's completely gone.

We've done a complete 180 on these cases. Yeah. Anyway. Well, we'll see if those strains are evident in the oral argument. But I think my prediction is that, no, the court is not especially interested, interested in protecting any. Kate, I told you how this was going to go. Yeah, you're right. Because this is a nonpolitical, nonpartisan court. Well, and I can still predict.

Very strong Sam Alito asking why the school district hates Christians vibes, right? Like that's going to be like, why do you have all of this animus toward particular religions? Do you want to do the last one? Oklahoma versus Castro Huerta. Continuing on with the strong stare decisis is for sucker vibes to wrap up the court's term. The court is hearing Oklahoma versus Castro Huerta. This is a case in which Oklahoma is effectively asking the Supreme Court to limit the reach of its previous decision in McGirt versus Oklahoma. McGirt had recognized that the reservation boundaries of the Creek Nation remained intact. And Oklahoma is

asking the court to say, well, even if that's true, can states prosecute crimes that occur on Native lands where the victim rather than the defendant is Native American. The idea that states didn't have jurisdiction over these cases was reflected in McGirt itself, as well as in several prior decisions. But Oklahoma is asking the court to basically take a big chunk out of McGirt without formally overruling it. I mean, Oklahoma did ask the court to formally overrule McGirt, but the court didn't grant cert on the question. They're just granting cert on the question that would, you know, in large part nullify the protections and reach of the McGirt case in a significant category of cases. Yeah.

Why not just end the term with a sitting where you just blow all the press? Overruled, overruled, overruled. You know, nullified nullified nullified yeah just vibe out all the way yeah all the way to july we have all this to look forward to guys i can't wait it's gonna be so fun so fun anyway i think that's all we have time for. That's all the good news we have time for today on Strict Scrutiny. Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Lippman, Kate Shaw, and me, Melissa Murray. We're produced and edited by the incomparable Melody Rowell,

with audio engineering by Kyle Seglin, music by Eddie Cooper, production support from Michael Martinez, Sandy Gerard, and Ari Schwartz, and digital support from Amelia Montooth. Thanks for listening.