Strict Scrutiny - The Only Loser is the Public

Episode Date: May 23, 2022

Ellen Weintraub, commissioner of the Federal Election Commission since 2002, joins Kate and Leah to break down the Supreme Court's opinion in FEC v. Ted Cruz, an important campaign finance case [2:07]. (Commissioner Weintraub also joined us to preview the case before oral arguments-- go back and listen to that episode if you haven't!) Kate and Leah also debrief the opinion Patel v. Garland, a major immigration case with a pretty devastating result [32:45]. They also flag a grant of a habeas-related case the Court will hear next term, Jones v. Hendrix [47:23], and then try to bring their blood pressure down by catching up on various statements and speeches Justices Thomas and Alito have given recently [52:01]. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court's rapid evisceration of government and society as we know it. Today, we're going to be focused on the government part, though. We're your hosts for today. I'm Leah Littman.

And I'm Kate Shaw. Melissa Murray is away again this week, but don't worry, she'll be back with us soon. As our last episode indicated, things at the Supreme Court kind of ground to a halt and were completely taken over by the leaked draft majority opinion in Dobbs v. Jackson Women's Health Organization. Now, as of this week, that's no longer the case, or at least no longer completely the case. The court released two opinions in argued cases, two pretty major cases last week, and we're going to cover those opinions as well as a notable grant. And then we have what appears to be a coordinated communication strategy by some members of the court. And let's just say that strategy does not involve the justices keeping their heads down,

letting the marshal investigate, and doing the people's business. That is emphatically not the strategy, but we will get there later in today's episode. So the two opinions that we got this week felt a little bit like, hey, let's slip some bad boys in there while everyone is focused on Dobbs, at least to me. They're not the biggest cases in that they're not likely to seize headlines, but they're extremely important opinions that very much warrant our attention. But I mean, I'm getting ahead of things. So why don't we just dive into the opinions now? Okay, perfect. So the first opinion that we got is in a case called FEC versus Ted Cruz, an important campaign finance case. When we previewed the case, we were lucky enough to be joined by FEC Commissioner Alan Weintraub. And Commissioner Weintraub was kind enough to agree to come back on the show to debrief the opinion. So Commissioner

Weintraub, welcome back to Strict Scrutiny. We are delighted to have you, though not delighted at the occasion for your visit. Well, it is always a pleasure to speak with you, ladies. Now, no surprise, since the Roberts Court hates campaign finance regulation almost as much as they hate abortion, the court invalidated the portion of the campaign finance law, BICRA, at issue in the case. The opinion was 6-3. The Chief Justice, Chief Justice Roberts, wrote the opinion. Justice Kagan wrote the dissent. And we will get to that. Just as a reminder, Commissioner Weintraub, what's the rule that Senator Cruz was arguing was an intolerable encroachment on his First Amendment rights?

The rule, it's actually, they could only challenge the statute, although an FEC rule was mentioned in the opinion. But the statute prohibited candidates from repaying themselves more than a quarter of a million dollars in money that was raised after the election. So if a candidate loans himself money to run, loans his campaign money, he can repay himself a quarter of a million dollars. But if he loans more than a quarter of a million dollars, he has to pay that back with pre-election funds. And the point of this, from the perspective of Congress, is that once you've won the election, you're in a slightly different status vis-a-vis your donors. They are no longer funding your campaign message. They are now just putting money back in your pocket that you had loaned to your campaign. And that, Congress thought,

presented a particular risk of corruption. Turns out the Supreme Court disagrees, because, you know, this is an argument that everyone, I think, knew, you know, had a receptive audience in this court. That is the argument the Cruz campaign was making. I mean, this is how the chief justice described the court's prior campaign finance cases in the Cruz opinion, saying, we have denied attempts to reduce the amount of money in politics. See McCutcheon to level electoral opportunities by equalizing candidate resources. See Bennett and to limit the general influence a contributor may have over an elected official. See Citizens United. It's like, aren't you proud of me, mom? Like, look at all of the

ways I have made it harder to reduce the amount of money, influence the appearance of corruption in politics. Like, let's just pat ourselves on the back and take a little victory lap here. Yeah, that string site as though it's not caused to like hide your head in a bag, actually something to be broadcast was really pretty stunning. But it certainly establishes that this opinion is of a piece with those earlier cases, which is just like the Roberts Court and Roberts in particular has never met with one exception involving a campaign finance regulation applicable to state judicial candidates. With that one exception, the court has never met a campaign finance regulation that it approves of on First Amendment grounds.

So we knew we would be here. We just didn't know exactly what route we would take. Well, but the good news is they did not take the opportunity to strike down the rest of the Bipartisan Campaign Reform Act, which even though it was not at all at issue in this case, some people were advocating that they just, you know, go for it. YOLO. Oh, yeah. No, Senator McConnell is just like, put it out of its misery, right? Just do the whole darn thing now. Yeah, I was actually oddly relieved to read the opinion when I saw that, because that was my biggest fear with any campaign finance case going up before the Supreme Court, that they would have this opportunity before them to do even wider damage. So we have

preserved some vestiges of the law. I am pleased about that. Okay, that's helpful. I was going to ask, and I do want to get into what we can read in some of the tea leaves in terms of what the majority says about other provisions of what remains of BICRA, the Bipartisan Campaign Reform Act. But before we get there, Commissioner Weintraub, you described what this scheme basically does. Justice Kagan does the same in the opening to her dissent. And we thought we would actually just read that opening because she both describes the statute and regulation that you alluded to and what they're designed to do. And I think she sort of brings to life what is animating Congress in passing this limitation. So let's just read that here.

So here's what Kagan says. A candidate for public office extends a $500,000 loan to his campaign organization, hoping to recoup the amount from benefactors' post-election contributions. Once elected, he devotes himself assiduously to recovering the money. His personal bank account, after all, now has a gaping half-million-dollar hole. The politician solicits donations from wealthy individuals and corporate lobbyists, making clear that the money they give will go straight from the campaign to him as repayment for his loan. He is deeply grateful to those who help, as they know he will be, more grateful than for ordinary campaign contributions which do not increase his personal wealth. And as they paid him, so he will pay them. In the coming months and years, they receive

government benefits, maybe favorable legislation, maybe prized appointments, maybe lucrative contracts. The politician is happy. The donors are happy. The only loser is the public. It inevitably suffers from government corruption. So she sort of walks us through the logic animating, limiting the amount that this can happen, right? And we're saying limiting because that's what this does. There's no prohibition that's categorical on repayment. There's just a limit to the degree to which candidates who have become elected officials

can solicit money that will then go directly into their pockets. And when she spells it out that way, the logic is unmistakably clear. So despite the unmistakable clarity of the logic, I think to my mind, to all of our minds, the court with a straight face disagrees with that proposition, right? So what is the reasoning the court offers Commissioner Weintraub? Well, there is this bizarre disconnect between the world that the majority and the dissent seem to be living in. And I have to say, speaking as somebody with decades worth of experience looking at campaign finance issues, I live in the dissent's world, where money can have a corrupting influence,

particularly money that goes directly into a candidate's pocket. But the majority seems to deny that the money actually is going into the candidate's pocket. But the majority seems to deny that the money actually is going into the candidate's pocket. They have this odd view where they say, well, the money originally came out of the candidate's pocket when he loaned it to the campaign. So you're just giving him back what he had before, ignoring the fact that it's no longer there. It's no longer in his pocket because he took it out of his pocket. And now the donors are the ones who are putting it back in his pocket. And that just does not compute at all for the majority. And I don't get it. And the dissent points out, you know, like everybody in the world

understands this except you guys. What is the matter with you guys? Yeah, that bit was really astonishing. The idea that if you forgive a loan, you're not making someone richer. I mean, have these people never had loans before? Do they not understand how they work? And also, as Justice Kagan said, you allow the candidate to turn a tidy profit because you can make the loan and charge interest. And it's just, yeah, that bit was astonishing. But I think more broadly, you know, the majority opinion basically Citizens United and McCutcheon basically saying, we greet the assertion of an anti-corruption interest here with a measure of skepticism. What are they saying? What is the court's take on what corruption is and why this statute doesn't have to deal with anti-corruption. Well, this is another place where the majority is just living in a world that I don't recognize,

because democracy, according to the majority, is enhanced by this kind of favor trading. It is a feature. They explicitly say it is a feature. They don't say it's not a bug, but that is the implication. It is a feature of democracy, one that the majority celebrates, that people can get access and influence and return from money. Isn't that great? That is a cornerstone of democracy. You're asking me to explain the majority's rationale, and this just, this may be beyond me. Yeah, we can offer a couple of excerpts, but I think we too will struggle to actually make it cohere because it really feels disconnected from reality. But the court does basically say, look,

the provision burdens First Amendment rights, right? As the court always says in these campaign finance cases, right? It reaches for, you know, this kind of hollow invocation of the proposition that the First Amendment has its fullest and most urgent application to campaigns for office and that debate on public issues should be uninhibited and robust and wide open. And I don't think anyone disagrees with those propositions in general terms, but then to suggest that those values are advanced by allowing unlimited repayment of personal loans to campaigns, I think is where the profound disconnect sets in. After the election. After the election.

After the election has already occurred. And right, so they're not even candidates anymore. They're the victors. As Kagan, I think, notes very effectively, one of many very effective points she makes, nothing purports to limit what candidates can do in terms of self-funding their campaigns, right? So this kind of suggestion that there is actually a limitation on the amount of speech that candidates can themselves fund is simply not borne out by the way the statute works. Right. And you're also not restricting the amount that anyone else can give to a campaign, right? They can give all they want.

This statute has nothing to do with this. All you are doing is limiting their ability to give money directly to the candidate to pay back a loan. Like, that's the only restriction. They can give to the campaign. The candidate can give to themselves. And still the court says, well, this like burdens First Amendment rights because it makes it harder to raise money after an election in a way that will

affect the ability to like pay back this particular person. It burdens core political speech, according to the majority, again, equating as it has on many, many occasions, money with speech, which, you know, some people think there actually is a difference. So maybe let's pivot now to what this opinion signals potentially about the fate of other provisions of what remains of the federal campaign finance law. So the majority says somewhat dismissively, ah, to the extent that there are general anti-corruption interests here, look, like the law limits the amount that individuals can contribute to campaigns. And that in and of itself is sort of enough to advance these anti-corruption interests.

And Kagan seems pretty concerned. So in dissent, she basically says the majority's argument focuses not on the restriction that Section 304 actually imposes, but on the indirect effects the provision might have. But every contribution regulation has some kind of indirect effect on electoral speech, consider a standard contribution ceiling like the federal $2,900 cap rate. Like that's the limit right now that you can donate directly to a campaign both in the primary and in the general election. Kagan says that limit makes raising money harder. And so it predictably gives a campaign less money to spend. By the majority's logic, that downstream effect would mean the contribution cap imposes a significant First Amendment burden. But as noted above, we've always held to the contrary. Okay, did this make you nervous, Commissioner Weintraub? Right, contribution limits are one of the last remaining pillars of BICRA, along obviously with disclosure,

which your agency is responsible for overseeing. But is Kagan highlighting the vulnerability of those limits on the majority's own logic a risky strategy? Or is any vulnerability already baked in at this point? And so she's right to kind of just highlight it and sound the alarm. Well, I think in this case, and in others that we have seen recently, and that we anticipate, you have to worry about the downstream effects and what's coming next, particularly when the court writes with such bold words. She's not saying anything that hasn't occurred to them already. The contribution limits have been the thing that's been threatened to be on the chopping blocks for a long time. And a lot of

people are justifiably worried about it. I'm sure she didn't put any ideas into the other justices' heads that they weren't already thinking about as they went through the litany of cases that they've already, as Leah pointed out, used to strike down one provision after another. In 2002, the Bipartisan Campaign Reform Act, sometimes known as the McCain-Feingold Law, was really seen as the first real attempt in a generation to impose some limits on campaign financing in a way that would reflect the broad public concern with the potential for corruption and money in politics, with this kind of wheeling and dealing and what is being given and what is being received and what's being promised in return for all of this money that's being raised. Because, which, by the way, in the last election was in the vicinity of $14 billion, which was literally double what was raised and spent in the preceding presidential election in 2016. We've never seen an increase like that. It literally doubled and who knows how much will be spent in 2024. So we're talking about

vast, vast sums of money. Now, the good news is that a lot of that is coming in in small donations, but there is also an enormous amount of money that is being raised in very large denominations from millionaires and billionaires. A lot of that's going through super PACs. You know, one of the side issues not raised here, but perhaps suggested by their reference to Citizens United, is that one of the issues going on on the side of this decision when we talk about, OK, they preserve the contribution limits, but in Citizens United, they opened the door to these super PACs. And the way that these super PACs have evolved is causing a lot of people to feel like the contribution limits have been largely eviscerated anyway, because of all the

interconnections that have been allowed to flourish between the super PACs and the principal campaign committees. And I have to say that is partially on us, on the FEC, because in the 12 years since Citizens United and since super PACs have really come to play such an enormous role in our politics, I have not been able to persuade my colleagues to undertake any rulemakings to address super PACs at all, at all, in any way, shape, or form.

And one of the aspects that I'm currently very concerned about, and that has been the subject of, again, repeated degradation of any kind of limits has been the ways that candidates and the super PACs coordinate. So yes, the contribution limits to candidates are still technically on the books, but the role of millionaires and billionaires in funding super PACs and in playing enormous roles in particularly the closely contested election really cannot be disputed at this point. So, yes, we still have contribution limits for now, kind of. And I guess that is something to be happy about on this bright, sunny day. We can be happy for the with the contribution limits at this point in a world in which so much outside money is raised and spent on elections actually are a kind of problematic vestige of a different kind of campaign finance scheme.

And it would be better if more money went directly into Canada coffers rather than to these outside forces in some marginal way. Now, I don't actually agree with that proposition, but I do think that it's one that I have heard voiced quite a bit. But for the moment, symbolically and practically, it is both important that these contribution limits, I think, remain. But also, it does feel to me like some of the kind of Roberts breadcrumbs in this. Well, I don't know if they're breadcrumbs exactly, but it has the feel, some of the discussion of the contribution limits has the feel of like the first step in this deregulatory two-step that the court often uses in these kind of law of democracy, not just campaign finance cases. Don't worry, we're not going to adjudicate challenges to partisan gerrymanders, but these independent commissions are out there. And like, who knows what the court is going to do with independent

commissions? Yes, we're going to strike down the coverage formula in the Voting Rights Act. Don't worry, Section 2 is out there, but then we're going to eviscerate Section 2 in Brnovich. It does feel like contribution limits are out there. So don't worry, we don't need this, you know, repayment limitation. And then who knows what happens with contribution limits. So I think that it is a two-step that is now all too familiar in this area of law, and it feels like that's where this is headed. But the calculus, as you just walked through so effectively, Commissioner, is somewhat complicated because Citizens United has so totally changed the finance landscape. And of course, Citizens United was a case that was not a two-step at all.

That was one where they reached out and seized an issue that wasn't even before the court in order to overturn, in some respects, decades worth of precedents. So actually, it was about 100 years worth of precedents that they overturned in Citizens United on direct corporate spending. So they have sometimes been very bold. And sometimes I wouldn't quite call it a two-step in this area. It's now, it's got to be at least a six-step in terms of the just steady whittling away and whittling away of one provision after another so that what was seen as this landmark law in 2002 to address the potential for corrupting money in politics, there's now

very little left of it. And one of the, I think, other aspects of this opinion that has broader implications or parallels with the court's law of democracy cases is the level of scrutiny that the court applied to the government's justifications for the statute. So we mentioned in the opening and explaining what the statute does, it's designed to reduce corruption, the ability of people to give money that goes directly into a candidate's pockets. And the court said the government is unable

to identify a single case of quid pro quo corruption in this context. Basically, you can't identify a specific example of that, so minimizing the risk of it or reducing the appearance of corruption just doesn't cut it. And I think that that was notable. This is something we pointed out last term when the court decided Bonta, where again, the court faulted California for not being able to come up with like a specific example about where their regulation was actually needed in a particular case. And they're doing the same thing here. But that's like a pretty different level of scrutiny that the court applies and

like other law of democracy cases, like say voting rights. No, I absolutely agree with that. The court has substituted its own judgment for that of not only the record in this case, but the lived experience of members of Congress who are, in fact, practicing politicians, who do raise funds and know a little something about what goes on behind closed doors when those funds are being raised. You know, this demand for the example of the quid pro quo corruption, you know, that kind of a conversation is not going to take place out loud in front of a crowd. It's going to be a very private conversation

and perhaps a little bit of implication will be involved. It might not be a direct, I will give you this bag of money if you will then do this thing for me. You know, it's probably going to be a little bit more subtle than that. But there are obviously going to be problems in acquiring proof of that kind of a transaction. But the court nevertheless substituted its own judgment for, as I said, the lived experience of members of Congress who know how this world works perhaps better than members of the judiciary do, none of whom at the moment have any political experience. It is not a surprise that the court took a turn toward the deregulatory after Sandra Day O'Connor, the last practicing politician who was on the court,

left the court. She had that feel for what this world is like, and I don't think any of these justices really do. And they do require an extraordinarily high level of proof in order to justify any kind of limit on money in politics, which they do not seem to require in the voting context, as Leah pointed out. They're the hypothetical and at this point, completely unproven myth about voter fraud was enough for the court to justify saying that state legislatures could, of course, impose restrictions that would make it harder

for people to vote. The core of democracy for this court appears to be this transactional spending of money and getting influence and access with politicians and not the actual act of citizens voting. Yeah. And I think that that is also important to situate this case inside the larger debate we are having right now about, well, in the context of Roe, like we're just returning a right to the democratic process crowd. You know, Sherrilyn Ifill had a wonderful piece in the New York Review of Books about how Justice Alito's statement that like you have political power, ladies,

and just use the democratic processes, you know, rang a little hollow given how the court has dismantled protections against voter discrimination and voter suppression in Shelby County, Brnovich, and quite possibly Merrill versus Milligan, you know, the districting case that the court is set to hear next term. Again, just based on this entirely unfounded speculation that voter fraud might exist, and it uses that to say and states can enact restrictive voting laws. And, you know, Justice Kagan's dissent, I think, made this point in several places. You read in

the opening, Kate, where she said the only loser is the public. It inevitably suffers from government corruption. And then in the closer of her dissent, she says democracy works only if people have faith in those who govern and the people cannot have faith in representatives who trade official acts for financial gain. She says in discarding the statute, the court fuels non-public serving self-interested governance. It injures the integrity, both actual and apparent of the political process. And then the intro was this like angry but still resigned note where she says in allowing those payments to go forward unrestrained, today's decision can only bring this country's political system into further disrepute. And it's just, it's sad to think about. It was sad to read and to again, like acknowledge

how this case is happening together with all the others that have made our system like so skewed and unrepresentative. And it is a hugely serious problem. We are really undergoing a crisis of trust in government, trust in democracy. And as Justice Kagan said, the system can't hold if people don't trust it. We are living in a world where I think, you know, a third of the population is convinced that the last election was fraudulent, although there is no evidence to back that up. Multiple lawsuits tried to assert those claims, and they pretty much all got tossed out of court. The lack of evidence just doesn't seem to matter. And this has real world consequences. It has real world consequences when people become so

disheartened that they don't even bother to vote. Forget about the obstacles that are affirmatively placed in their way. People just give up and say, why should I bother? Why should I bother to spend the time to go to the polling place when the system is rigged against me? And you hear this kind of language from both the left and the right, this concern that the system is rigged and they're not going to be able to have an impact. And what you end up with as voter turnout declines is a less representative government, a government that is not animated by the consent of the governed because the governed have just, you know, given up, turned away and think that none of it matters. And this has

consequences in other matters. You know, if people think the law of democracy is too esoteric, I was reading just the other day that in Australia, they had one-tenth of the per capita deaths from COVID that we had in the United States. And one of the facts that people point to as to how they managed to keep it under control was that people trusted their government. They trusted it to do the right thing.

And when the government said we have to do this to keep ourselves safe, they said, OK, we're in, we're going to do that. And it has real world consequences, life and death consequences, when people lose faith in government to do the right thing for the populace. So I think this really could not be more serious. I think that's such a great point. And we should say we were recording this episode the night after the Pennsylvania primary, in which the Republican candidate for governor will be someone who has publicly taken the position that Donald Trump was the rightful winner of the 2020 election.

That's concerning on its own. It's concerning doubly because in Pennsylvania, the governor appoints the secretary of state who runs the state's elections. But I think that all of the points that you were just making, Commissioner, that this is not an esoteric question of campaign finance law. If the Supreme Court disables the representative institutions of government from doing even this minimal work that will try to minimize corruption and advance public trust in government. If the court won't allow that, that is not isolated from the rest of the kind of dynamics that you are describing, that erosion of trust in government leads people to accept outlandish claims, makes governance around all manner of issues, including pandemic response, much, much more difficult, causes disengagement and, you know, reduction in participation. So

these things are all connected. So this isn't just a case about Senator Ted Cruz, aka Snowflakes Human, wanting his name on a Supreme Court opinion because Mitch McConnell has his name on a big one. This connects in a really direct way to a lot of other kind of profound challenges to our democracy in this moment. Commissioner Weintraub, thank you again so much for joining us and for your work in this area. We always appreciate your time

and we hope to have you back on what might be, could be like happier occasions someday. Yeah, I'd like to come back when they haven't struck down a portion of the law that I administer. That would be good. Let's do that. Let's mark our calendars. Let's mark our calendars. Thank you so much, Commissioner. Thank you. We'll be right back. Now we'll go back to the show. So let's pivot to the next case we wanted to debrief, Patel v. Garland. Sound good?

Yes. So the court also decided a major immigration case that is about the federal court's ability to review factual issues that affect decisions involving so-called discretionary relief in immigration cases. Basically, the way the immigration system works is that there are a lot of people who are formally eligible for removal or deportation proceedings, but federal law authorizes the attorney general to grant various forms of relief from removal or deportation, like something called cancellation of removal or withholding of removal. And there are many other forms of relief available to people who might be, again, formally, by law, eligible for removal or exclusion. So those forms of relief are available to different groups of people, like people who have citizen children or people for whom removal would be a substantial hardship. And the forms of relief are not available to other groups of people. They're not available, for example, to people with certain criminal convictions or who pose a national security threat. So the question in this case is, what if an immigration judge makes a factual mistake, like just messes up the facts, and uses that factual mistake to deny you discretionary relief? Can a federal court review that factual determination? Here,

the federal government, that is the Biden administration, and the immigrant agreed that the answer is yes, a federal court can review that clear factual error. And the 11th Circuit said no. So the court appointed an amicus to defend the position that federal courts lack the authority to review these kinds of factual determinations. And by a 5-4 vote, the Supreme Court said federal courts may not review any factual determinations that relate to a denial of discretionary relief. That is sided with the 11th Circuit and the amicus and against the position of both the immigrant here and the federal government. Justice Barrett wrote the majority opinion. Justice Gorsuch wrote the

dissent, which was joined by the three Democratic appointees. Here's how Justice Gorsuch described the issue in that dissent. Today, the court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual's removal from this country and nothing can be done about it. No court may even hear the case. It is a bold claim promising dire consequences for countless lawful immigrants. And it is such an unlikely assertion of raw administrative power that not even the agency that allegedly aired nor any other arm of the executive branch endorses it. So in order to make clear again, like how this plays out, I think it's

helpful to understand the facts of this case. So the petitioner here, the immigrant Mr. Patel, has lived in the United States for nearly three decades. He and his wife have three sons, one who is already a United States citizen and two of whom are lawful permanent residents and spouses of United States citizens. Mr. Patel entered the country illegally when he was quite young, but in 2007, he applied for an adjustment of his immigration status to that of a lawful permanent resident. That's what we commonly know as having a green card. But green cards are discretionary. So a few months after Mr. Patel filed the application for his green card, he sought to renew his Georgia driver's license. There was a question on the application, are you a U.S. citizen? And he checked yes.

But that was an error. Georgia charged him with willfully falsifying his driver's license application, but they dropped the charges. They decided not to prosecute after concluding they lack sufficient evidence to prove a crime. That's partially because Mr. Patel has consistently claimed that he never intended to deceive anyone and he simply ticked the wrong box by mistake. And that's further kind of backed up by the fact that under Georgia law, Mr. Patel was eligible to receive a driver's license without being a citizen because he had a pending application seeking lawful permanent residence and a valid employment authorization document. So DHS denied his green card application saying that he had falsely

represented himself to be a citizen of the United States to obtain a benefit under state law. And that's one of the categories of individuals not eligible for a green card. Then the government decided to attempt to remove Mr. Patel. And Mr. Patel wanted the federal court to determine whether the government had made a mistake in concluding that he had falsely represented himself to be a citizen in order to get a driver's license. The immigration judge said, no, you did. You falsely represented yourself in order to get a driver's license. But the judge was just wrong in a lot of ways. The judge said that Mr. Patel could not have obtained a Georgia driver's license if he had disclosed that he was neither a citizen nor a lawful permanent resident,

and that that was a reason to conclude that Mr. Patel intended to deceive Georgia. But that was wrong. That was not true. Mr. Patel was eligible for a driver's license because he had a pending application. So there was an obvious error committed by the immigration judge. And again, you know, the implications of this case on these particular facts are already, you know, consequential bad enough. But the reality is this is going to have implications in many other thousands of cases as well. You know, as Justice Gorsuch noted in the dissent, the majority's interpretation has the consequence of denying any chance to correct agency errors in processing green card applications. And he notes in the last three months alone,

customs denied more than 13,000 green card applications, and there are almost 800,000 still pending. And, you know, I guess this is what it means to be a country with due process of law where the federal agency just gets to make a mistake of fact in denying you the ability to stay here and there is nothing you can do to challenge it. In addition to just, again, like that bleakness, this opinion, again, brought home to me just how bleak the state of affairs is. I mean, the progressives, the immigrant, they won Gorsuch, they got his vote in an immigration case and still lost and they lost to a position that even the federal government wasn't pressing. And it's just so, so bleak. It's bleak. And I think that there were a lot of people who were holding out hope that because

Barrett had such a limited record as an appeals court judge, we didn't totally knew how she stood on questions like this. So she might be, say, gettable in a case where, you know, you got Gorsuch. And I think that the accumulating evidence is that she is not gettable in these kinds of cases. And that is just profoundly disheartening. On the Gorsuch point, you know, I do think it's right that, you know, you get Gorsuch and still lose the case. Really, really bleak conclusion. Although Gorsuch, I think, is in the right here. I could have done without, and I am sure that his fellow travelers in dissent, in particular, like Justices Kagan and Breyer, could have done without some of the anti-agency rhetoric that infused the opinion. The opinion is in part about the importance of courts as a bulwark against errors that could have incredibly serious consequences for innocent individuals.

But also, he cannot resist taking swipes at mistakes by foolish bureaucrats that like wise courts should be able to correct and the importance of checking raw administrative power. So I presume that the others in dissent had to just like bite their tongues and join those portions of the opinion, but I am sure it was painful. I'm imagining Elena Kagan sitting at her chambers holding her nose, like taking two shots of vodka and being like join me neil like you know like i'll do this but like oh you know because like obviously like you don't have like a lot of negotiating room and like negotiating power and so like you just do it but oh yikes um but it's like so aggressive that i almost feel like he was doing it on purpose because he knows that he's not going to like lose their votes. And also like late in the term, they are obviously working through a bunch of incredibly important cases.

And sometimes you just, I guess, keep your powder dry and he's doing that in order to counter some of the legislative history relied upon by the government. But Gorsuch also didn't notice, held his nose, actually like is fine with the occasional legislative history invocation, if it's like, you know, then-Senator Sessions. I don't know. It was really weird. But maybe, you know, like, he had to join some stuff he didn't agree with either. But I definitely felt for Kagan in particular in some of those portions of the opinion. One other point I wanted to make about the opinion is that it is just kind of such a puzzle to me how selective Gorsuch in particular is in his receptiveness to understanding the harm that government policy can visit upon people, right? Like he sees it here. He sees how arbitrary and unfair it is to potentially subject this couple who's been in the United States for decades to removal on the basis of this innocent mistake that was fundamentally misunderstood by an immigration official. And there is just not

any indication of any receptivity to harm if we're talking about things like individuals having their votes thrown out because they were cast in the wrong precinct, or who can't get an abortion in Texas even if they are, say, a rape victim, if they're seven weeks pregnant. Like, he is able so comfortably to invoke abstract principles in those cases. Now, of course, he doesn't write Brnovich, he joins it. But he, you know, does write the opinion in the Texas six-week abortion ban case. And I just find it a puzzle. I find it so difficult to understand how he is so able to kind of appreciate harm in some contexts and not others. I mean, it just goes to this point, it matters the justices background, it matters their life experience, it matters, you know,

their circle of friends. I mean, Justice Gorsuch's wife is a naturalized citizen, you know, he's spoken about how that has like influenced his assessment of immigration cases. And obviously his background coming from the West and, you know, issues of Native American affairs that has obviously affected his view of that area of law as well. These are just kind of like basic realities about what being a judge is and what you do as a judge that people still try to deny. But you know, it's just like inescapable. Absolutely. Now we'll take a quick break.

Strict Scrutiny is brought to you by Outer Known. Outer Known was founded by pro surfer Kelly Slater to make clothing sustainably. And sustainability is not something Outer Known takes lightly. It's literally why the company exists. Outer Known offers women's and's literally why the company exists. Outer Known offers women's and men's clothing where style meets sustainability. Outer Known clothes are high quality, comfortable, and fit great, and they have timeless styles made to last for years. What does sustainability mean to Outer Known? It means two things. First is taking care of

the planet by using only organic, recycled, and regenerated materials. The second is taking care of the planet by using only organic, recycled, and regenerated materials. The second is taking care of the people who make their clothing by ensuring that they have safe working conditions and receive fair living wages. Outer Knows' mission is to provide great clothes that don't harm the environment. I'm a big fan of their blanket shirt. It's marketed as the world's coziest shirt, and honestly, I think it is. It's basically like a huge blanket that's fitted like a shirt that you can button up. And it's like puffy like a comforter around you, but still stylish like a shirt. And there are several colors to choose from. I have it in a kind of plaid.

And I think I'm also going to get it in pink. They also have a lot of really cute cashmere as well as jumpsuits and who doesn't love a jumpsuit? So go to outernone.com today and enter the code STRICT at checkout and you'll get 25% off your full price order. That's outernone.com O-U-T-E-R-K-N-O-W-N.com and remember to use the code STRICT at checkout for 25% off. Check them out today, outernone.com. And don't forget promo code STRICT for 25% off. Promo code STRICT. Strict Scrutiny is brought to you by Beam Organics. Do you know that poor sleep can cause mood issues, poor mental health, and lower productivity? And that sleeping less than six to seven hours per night is linked to reduced white blood cell count? White blood cells are the ones that protect our body against illness

and diseases, fighting viruses, bacteria, and more. Not many people realize this, but having a consistent nighttime routine is so important. A better tomorrow starts tonight. I feel like crap when I don't get a good night's sleep. Whenever that happens, the next day, I basically can only function until noon, and then I start consuming copious amounts of sugar or cheese just to get myself through the day. And then I just usually end up feeling even crappier. That's where Beam Dream can come in to help. Beam is the world's most innovative functional wellness brand with unique products for everything from sleep to recovery. And today, podcast listeners get a special discount available for Beam's sleep product, Dream Powder, their best-selling healthy hot cocoa. It contains natural sleep-promoting premium ingredients, it's triple lab tested,

there's no THC, and you wake up refreshed. 98% of people surveyed fall asleep faster when taking beam dream and 99% of people experience better sleep quality. You just mix beam dream into hot water or milk, stir and enjoy before bedtime. Because I'm a crunchy hippie, I steam a little oat milk and I pour the steamed oat milk into my beam dream and I curl up as I'm getting ready for bed so I know I can get a good night's sleep. And I do. I sleep well, I wake up the next day feeling rested, and I'm ready to go. And I can make it through the whole day without consuming excessive amounts of chocolate or cheese.

Don't love it? Get your money back, guaranteed. For a limited time, get up to 35% off when you go to shopbeam.com slash strict and use the code strict at checkout. That's shopbeam.com slash strict and use code strict for up to 35% off. And now back to the show. Okay, so we mentioned there was a notable grant, and I want to start talking about this grant now because it just has the makings of an utter disaster written all over it. So that case that the court is going to hear next term, so this is the term starting in October 2022, is Jones versus Hendricks, in which the court appears likely to make habeas law even worse than it already is. So they agreed to hear a case involving the so-called savings clause. This is going to sound a little bit technical, but we'll explain the stakes in a second. The savings clause is a provision of federal law that allows you to file

a federal habeas petition, that is like challenging your conviction or confinement, if the alternative remedy for challenging that federal conviction is inadequate or ineffective to do so. The question in this case is whether someone who was convicted of something that wasn't a crime can challenge their conviction in a habeas proceeding when the alternative remedy doesn't allow them to bring that challenge. Again, the question in this case is whether if someone is in jail for something that is determined not to have been a crime, they must stay in jail anyways. I am going to say that again. The issue is whether after the Supreme Court says you were convicted under a statute that was wrongly interpreted, so we have determined that under the statute what you did is not a crime. Can you challenge your conviction?

Or like we determine the statute under which you were convicted is unconstitutional and therefore no valid statute. Criminalize your conduct. You are in jail for something that was determined not to be a crime. And the question is, can you get out? Now, look, I am no habeas expert as you are, Leah. But if you ask me or like basically a billion non-lawyers that question, the answer is clearly the person obviously should not stay in jail for conduct

that's not a crime, right? That seems clear. And yet, as your intro made clear, it seems like pretty clear that the court is going to say they do have to stay in jail. How could that be? I mean, as a court of appeals judge, none other than famed libertarian hero Neil Gorsuch pioneered that view that yes, you have to stay in jail when you are convicting of something that is determined not to be a crime. All of the other courts had said, well, duh, the person who was convicted of something and is sitting in jail for something that isn't a crime can challenge their conviction. And then Neil Gorsuch comes along and is like, well, actually, textualism. I'm just dreading this. This issue is basically the issue I wrote my very first short law review

article about and have been writing about various various different ways and like shorter pieces and long pieces just because the idea that again, you cannot challenge your federal conviction if you were convicted of something that isn't a crime that like no statute prohibited is just wild to me like welcome to the freest country in the world, ladies and gentlemen, where the Supreme Court is going to rule, you have to stay in jail for something that was determined to be not a crime. Stay tuned. Stay tuned. Those people are going to get so lawyered. So boom, lawyered. Yeah. Okay. So we will reserve a lot of time on the podcast next fall for this abomination because we're going to have a lot of feelings to work out. Oh, yeah. add this case together with

the court of appeals case we discussed last week where you know police officers can arrest you for a satirical facebook post and you can't sue them for qualified immunity and i guess like you can't challenge a conviction for a non-existent crime either like this is what we overuse the term kafka-esque but that is literally what we were describing in both of these instances. And it's these kinds of cases that just get under my skin when people try to say Neil Gorsuch is great for criminal defendants because on these issues, that is, like, what you can do when your rights have been violated, he has been horrible, like so bad. And again, like he is now poised to make the law worse for everybody. And whatever does activate his sense of decency and empathy just is not present in these cases, no matter how egregious the facts. Yeah. There we are.

Okay. All right. To get our blood pressure down, should we pivot to the speaking circuit that Justices Thomas and Alito have been on since last we podcasted? Let's do it. So Justice Thomas decided to bring back the Troll World Tour for a let's do it again, ladies and gentlemen. That's what we call the Justices The The court isn't political speaking tour that they did in the wake of their decision allowing Texas's SBH to go into effect. And Justice Thomas, after we recorded our last episode, spoke at a conference sponsored by several GOP affiliated groups, you know, the American Enterprise Institute, the Hoover Institution, the Manhattan Institute. And he made some remarks as part of a conversation

with one of his former law clerks, none other than John Yoo. So let's dig into a few of his remarks. You know, he starts out talking about the leak. He addressed it. He was not, you know, Alito we'll get to in a minute was coy, but yet revealing. Thomas just was happy to talk about it because he doesn't care. Like who going to check me, boo, I guess, is to channel Melissa a little bit here. He doesn't care. So he's like, yeah, let's talk about the leak. Yeah, what happened was tremendously bad.

I wonder how long we're going to have these institutions, he says, at the rate we are undermining them. He says the leak of the opinion was like kind of an infidelity. Look where we are, he says, where that trust or that belief is gone forever. When you lose that trust, especially in the institution that I'm in, it changes the institution fundamentally. You begin to look over your shoulder. So, wow, the infidelity comparison. Like, there was a lot there. There is a lot there.

You know, to me, this – I don't even know what to say about this part of it. You know, the infidelity part was interesting in part because, you know, there of course has been speculation, you know, about like whether and to what extent a justice's spouse might be involved in this entire debacle. But honestly, like it somehow got crazier from there. Because like, I think that that was like the least insane part of this conversation. And then he started talking as Adam Liptak of The New York Times reported. He drew a contrast with a court that sat for 11 years without a change in personnel before the arrival of Chief Justice Roberts. Thomas said, quote, This is not the court of that era. We actually trusted each other.

We may have been a dysfunctional family, but we were a family. I mean, he is a member of the Supreme Court speaking publicly on the record, throwing shade at the Chief Justice. Like it's not even shade. It's just like a straight up read. And especially given the unsourced but like close to conservative sources at the court reporting that we've seen in places like the Post and the Wall Street Journal all about the kind of fundamental betrayal committed by Chief Justice Roberts in the Obamacare case, you now have somebody who is publicly taking the position that Roberts ruined the court. I think that's basically what Thomas said. We had a good thing going for, you know, 220 years, and then this guy shows up. That's basically what he said. Like,

I could not believe he did that publicly. I couldn't believe it either. I mean, again, you know, the previous leaks were like, people close to the conservative justices have been saying there is a price to be paid for what the chief justice did. And now Justice Thomas is just coming out and saying, like, that guy sucks, the chief justice, I hate him. And it's... It has gotten ugly in there. It's so obvious. Every time you see any of these glimpses, it's just like, I cannot imagine what is happening inside the walls of One First Tree right now. And he addressed as well, because again, he was happy to talk about anything,

why not, the protests at the justices' houses. And he says, you would, so I'm going to quote him here, you would never visit Supreme Court justices' houses when things didn't go our way. He said, we didn't throw temper tantrums. It's incumbent on us to always act appropriately and not to repay tit for tat. So I just want to like pause on like the kind of pronouns in the piece of the us, them, we, they. It's the protesters outside that we are not embodying. And so the we here is like a combination of, it is like a total elision of the distinction between the conservative appointees on the court

and kind of the conservative activist base. Like our activists don't show up at homes, at least historically, and their activists do show up at homes. And it just like is a pretty explicit collapsing of the distinction between the jurors on the bench and their extensions in kind of movement politics in a way that is kind of this, you know, mask removing. Like, yeah, we are on a team and they are on a team. And I mean, there was something almost, maybe this is weird, but kind of like refreshing about how explicit that was in the way he identified himself with protesters and against protesters. Like, that's it. There are two teams. We're on one. They're on the other. the fact that he apparently doesn't think it's like a temper tantrum to try to throw a coup after an election whose results you are dissatisfied with. He's like, well, we don't go to Supreme Court justices' houses, but what we do do is storm the Capitol.

And blow up the chief of staff's phone with insane conspiracy theories. Yes, and which we are suggesting that the former vice president and president-elect should be facing a military tribunal off of Gitmo for sedition. That's not temper tantrums. No. That's reasoned discourse. That's what we do. Yeah. Chanting and signs, that's temper tantrums.

Right. Accusations of sedition. Reasoned discourse. That's the rule of law. That's free speech. Again, not to leave anything off the table, Justice Thomas also decided to share some thoughts on Republicans' blockade of President Obama's third nominee to the Supreme Court, Merrick Garland. He added that conservatives had never trashed a Supreme Court nominee. He said, well, of course, Garland did not get a hearing, but he wasn't trashed. You won't see the utter destruction of a single nominee. And then again, it somehow gets crazier.

Justice Thomas also said that Senate Republicans who blockaded the nomination were following a rule that President Biden had established, which is you get no hearing in the last year of an administration. I mean, like he's just repeating Republican – The Fox News talking point. Yes. Yeah. I mean, it's – you know, he says publicly he doesn't like take in cable news or- Right, sure, Jan. Sure, Jan.

It's literally just parroting a Fox News talking point. So, you know, again, very revealing that that's the media ecosystem in which he resides, which like, of course, we knew anyway, but it is just further proof of that fact. Yeah. Also indicating other media that he consumes, i.e. this podcast, he decided to make clear his views on stare decisis, the doctrine under which courts are supposed to respect and adhere to prior precedents, saying, and I quote, I always say that when someone uses stare decisis, that means they're out of arguments. Now they're just waving the white flag.

And I just keep going. I think it's actually finally time for us to send him a stare decisis for soccer shirt, Leah. We've held off. Yeah. No, to be honest, it was a little bit like us them protester talk to me because it's just like, you know, stare decisis is not the only thing that separates what judges do from what politicians do. But like it's one thing that like distinguishes them. And for him to say that's not a thing that guides us, all we are doing is just enacting our preferences into law. And again, like we don't need at this point because, you know, when you have the votes, you can do anything to pretend otherwise. So he just kind of said it. Yeah.

He also took some shots at the press. We actually have a clip of this statement. So we'll just play that clip here. One of the things I'd say in response to the media is when they talk about, or especially early on, about the way I did my job, I said, I will absolutely leave the court when I do my job as poorly as you do yours. And that was meant as a compliment, really. And that's Justice Thomas, ladies and gentlemen. Ladies and gentlemen, the aristocrats. I mean, it was just, it was quite the show, quite the show. Justice Alito returned somewhat to the speaking circuit after turning

tail and opting in the immediate wake of the leak not to attend the Fifth Circuit Conference. So he's back. He's showing his face. He's showing his youthful visage, this time to a group of people at the Antonin Scalia Law School at George Mason. He took some questions from the audience, I am sure pre-screened, right? One of them did seek to kind of elicit some comment on the dynamics inside the court right now. So the question was, I think it would be helpful for all of us to hear personally, are you all doing okay in these very challenging times? This at least is how the question was reported by Bob Barnes at the Washington Post. Alito seems to have like taken this moment to really introspect

a little bit on what's happening inside the court. And he said, and again, we don't have video or audio of this, so I don't exactly know the tone in which it was delivered, but he responded by saying, this is a subject I told myself I wasn't going to talk about today regarding, you know, given all the circumstances. Okay. So then he pauses and then he says, the court right now, we had our conference this morning. We're doing our work. We're taking new cases. We're headed toward the end of the term, which is always a frenetic time as we get our opinions out. So warm. So reassuring.

So I think we can take from this that no one has put a horse's head like on anyone's pillow, right? Like there's been no overt violence or intimidation, one justice to the next. But that's kind of all we can rule out. Like it sounded pretty bad. Yeah. So Bob Barnes at the Washington Post who reported on this wrote, quote, Alito skipped the usual boilerplate

that justices tend to employ about disagreeing about the law, but remaining respectful and friendly. Opting to conclude his speech with this instead, quote, so that's where we are. Oh, subtlety. The number of shots. Yeah, I mean, you referenced Justice Kagan taking shots to get through signing on to the Gorsuch opinion in the Patel case. Like, the number of shots that I wonder

whether they're all either taking or contemplating taking as, as they make it through these like last few weeks of the term, I just. Obviously, the court recesses for the summer, you know, the justices travel, and historically, that has been a way, you know, to like decompress, hit reset, be able to join anew, you know, kind of leaving aside what happened last term. But are three months going to be enough to get over this? Because, I mean, again, from the statements in the press, it's clear that several members of the court haven't gotten over how the Chief Justice voted in NFIB versus Sebelius when he declined to invalidate all of the Affordable Care Act. And that was 10

years ago. So... The only solution here is to cancel the term that is set to begin October 2022. Just take the year off. Let them reset. Honestly, the fate of the country. They deserve it. Yes, exactly. Everyone should just go on a retreat to somewhere where they don't have. Not together.

Oh, no, no, no, no. Yeah, yeah, yeah. Retreats to like different corners of the earth. But Thomas and Alito should go somewhere where there's like no internet. So they like can't be talking to the press because like that's not helping things. But speaking of the press, right back to Alito's speech, we actually should mention a couple of the substantive points that were raised. I think the speech mostly focused on how the court's decision in Bostock was wrong and how Justice Scalia wouldn't have been with the majority. Remember, like, the opinions in the case, Gorsuch's majority, Alito's dissent, Kavanaugh's separate dissent, each tried to kind of claim the mantle of we are the rightful heir of Justice Scalia. Like, we are doing the true and correct textualism. And Alito

was like, no, no, I was, really, I was. Gorsuch is a friend, a colleague and a friend, he said. So he did say something somewhat warm about one member of the court. So there is that. But the decision he continued was, in my view, indefensible. Like he basically used this opportunity to relitigate his unsuccessful dissenting position in the Bostock case, right, holding that the prohibition on sex discrimination in Title VII encompasses discrimination on the basis of sexual orientation and gender identity. And, you know, it's just that passage from Alito's speech is just like a helpful rejoinder to all of the myriad suggestions that precedents are safe in this court, right?

Now, Bostock is a statutory case. Like we have mostly in the kind of wake of the Dobbs leak been talking about the constitutional precedents, which are, I think, quite explicitly imperiled by the logic of that opinion. And there is supposed to be, but see, Thomas, a rule that stare decisis is super strong in statutory cases, because if the court gets the interpretation of a statute wrong, the logic goes, Congress can always just correct

the court and amend the statute. So the court's not really supposed to overturn itself in statutory cases. So that's an additional hurdle to like the court ever potentially revisiting Bostock. But as you can hear from these remarks, like Alito's all in on that project if there were the votes to do it. Oh, yeah. Fucking grudge Judy over here. I stole that one from Cody Rigsby, people. When he said that, I was like, I love you so much, Cody. I mean, I need to get him on the podcast. Are we working on this? We need to be working on this. You know, I want to work on this. I don't know how to work on this, frankly, other than like liking all of his posts and like buying all of his XOXO Cody Peloton gear. But, you know, on Twitter, I offered to send my dog Stevie, who's adorable and the best to the Kagan Sotomayor and Breyer chambers to help them get through like the last few weeks. And now that I think about it more, I feel like what

Justice Kagan, Justice Sotomayor, and maybe Justice Breyer need, although he's probably fine because he just like lives in his own world. What they need is like they need Cody Rigsby as like their private cheerleader, just telling them like, slay girl, slay. Like, you are that bitch. I'm sure they consume his content. They have to. And it does feel like it's directed to you personally when you're taking his classes. But actually, you're right. Something that is specifically customized for getting them through the next few weeks of the term, I feel like, would be really welcome right now.

Yeah. Yeah. The Peloton folks are doing Fleetwood Mac content right now. And I don't know. Are you huge? I mean, I presume you're. Yes. I'm a Fleetwood person. Okay. I figured. Did he do any of the Fleetwood Mac? He now. And I don't know, are you huge? I mean, I presume you're- Yes. Because Stephen X is a huge Fleetwood Mac fan.

Okay, I figured. Did he do any of the Fleetwood Mac? He has not. Any rides? Okay, all right. So Emma did a ride and- I did a short run yesterday. Yeah.

It was a Susie Chan run. That was good. All right. Well, maybe that's something to hope for in these dark times. Yeah. Okay. Well, I think I'm glad we ended on Cody. That was a light, an uplifting note to end an otherwise extremely difficult episode.

Fix the wig, find your light. Amen. All right. So we'll leave it there. Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Littman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Audio engineering by Kyle Seglin.

Music by Eddie Cooper. Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz, with digital support from Amelia Montooth. We'll see you next time. Thank you.