Strict Scrutiny - The Ultimate in Anti-Abortion Exceptionalism

Episode Date: April 17, 2023

Kate and Leah talk to ProPublica's Justin Elliott about the latest findings in Clarence Thomas and Harlan Crow's friendship. First luxury vacations, then undisclosed real estate deals. Then, if you're wondering about the latest in the mifepristone cases, the hosts breakdown the latest news and what it all means for abortion care nationwide. Kate and Leah also preview two court cases that will be argued at the Supreme Court next week, recap an opinion, and highlight a concerning grant.We want to hear from you! Submit your questions to [e-mail] (If sending a voice memo, please keep it to 20 seconds or less)Read ProPublica's reporting on Justice Clarence Thomas's home sale to billionaire republican Harlan Crow.Here's a twitter thread from Leah on the consequences of the Mifepristone rulingFollow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events. 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 and the legal culture, as well as the general insanity that surrounds it. We're your hosts today. I'm Kate Shaw. And I'm Leah Littman. Melissa, unfortunately, couldn't be here today,

but she'll be back next week. Because of all of the fuster clucks happening in and around the Supreme Court and the federal courts more broadly, we're going to structure this episode similar to the last episode, meaning we'll first cover news and culture and then get to all of the other stuff the court does, namely hearing and deciding cases. But first, a reminder up top that we are going to have our first grab bag episode with listener participation when the court finishes oral arguments. So keep an eye out for a graphic that is already circulating on some of the socials that will allow you to submit questions there. But there is also an option to let us hear your voices. And with that in mind, if you want to ask us a question, you can just send us a voice memo with that question

to strictscrutiny, just one word, at crooked.com. Please keep those questions to 20 seconds or less. And when you send your memo in, if you are okay with it, we would love to hear your name, what you do, when and where you listen to the podcast, and if you want, maybe a favorite episode or two. So once again, send those memos to strictscrutiny at crooked.com and try to get them in before April 25th or 26th so we have a chance to listen to them and potentially include them in the show. So now onto the show.

We have some additional information about what it apparently takes to be close personal friends with a Supreme Court justice. Yes, listeners, there is more breaking news about Harlan Crowe, the Republican mega donor, billionaire who's been bankrolling Clarence and Ginny Thomas's luxury vacations and hobnobbing get togethers with other politicians and individuals in the conservative legal movement. Because things are always worse than they seem with this court, we've learned something since our last episode. And for this segment, we are delighted to be joined by one of the phenomenal journalists at ProPublica who broke these stories, Justin Elliott. Justin, welcome to the show. Hey, good to be here.

Justin wrote these stories with Joshua Kaplan and Alex Meyer Jeske, and the reporting, as Leah mentioned, really is fantastic. So let's start with the new information about the Crow-Thomas financial dealings that has broken since our last episode. And maybe just to lay the groundwork a little bit, on April 6th, Justin and his colleagues published a bombshell piece describing the private jet rides, luxury vacations, super yacht cruises, private resort stays, and more that Harlan Crowe lavished on Clarence and Ginny Thomas. Again, we covered that in some depth on a previous episode. But in terms of the latest reporting, Justin, can you give us a brief overview of your latest reporting? Sure. So as you mentioned, the original story was about

luxury travel. And in response to that story, both Harlan Crow and Justice Thomas had released statements describing their friendship, their close friendship, using the word hospitality. We subsequently found out and wrote a story about actually a real estate deal that happened between the two of them. So the short version is that about a decade ago, Crow or a company, an LLC controlled by Crow, bought several properties that were part owned by Justice Thomas along with his relatives. This was a home that Justice Thomas spent part of his childhood in, along with two nearby vacant lots in Savannah, Georgia. So they actually, you know, we have a deed and a sale document showing money going between the two of them. And so after Crow's company bought the Thomas house and the neighboring vacant lots, then kind of what happened to the house?

Right. So we still don't fully understand this transaction, frankly, but Crow told us in a statement for the most recent story that his intention is someday to make this home that he bought into a museum about Clarence Thomas's life. One of the sort of unusual things about this is that this home is actually where Justice Thomas's elderly mother still lives. So Harlan Crowe may in fact be the landlord of Justice Thomas's mother. Not sure if the word landlord is appropriate if he's not charging her rent, but we don't really know what the deal is with that. We were able to establish through local permit records that right after the sale took place in 2014, about $35,000 of improvements were made to this house,

including the addition of a carport. Another thing that doesn't really fully square with the idea of creating a museum at this property is Crow also bought these two vacant lots that don't actually abut the property. They're on the same block. And he later sold those to another developer who put up new houses. So there's other real estate transactions I could get into, but that's sort of what we know right now. This all sounds like something just as friends do. They like buy their friend's mother's house. They buy the neighboring vacant lots. They make improvements. They potentially allow them to live there for free. Sounds like great friends.

And I think the other important thing to say about the story in terms of the legal or disclosure requirements here, I mean, Justice Thomas, like many other federal officials, are required to file these annual disclosure forms in which you list your assets and outline transactions. And this sale of this property did not appear anywhere on his 2014 disclosure form or any other disclosure form that we've seen. And all of the ethics law experts we've talked to say that this just appears to be a clear violation of that law. We haven't heard from Justice Thomas on this question yet. So as to the first story, there were both the kind of first order questions about the appearance of the kind of receipt of this largesse from this billionaire super donor. And then the second

order questions about the failure to disclose that all the reporting teed up. And I think you have both of those sets of questions with respect to this story, too. But with one important difference, which is as to the yacht trips and the private jet flights and things like that, there was at least a case to be made. I don't think a persuasive case, but at least a case that personal hospitality is essentially a limitless term in its capaciousness. And all of these gifts and trips fell under the heading of hospitality from a friend. The law is really clear as to the disclosure of income and real estate transactions. And there's not, I don't think, a plausible case, although I await with curiosity and some dread how defenders might try to make out such a case. But there's a federal disclosure law that really clearly includes associate justices of the Supreme Court that's in the statute. And it requires the disclosure of the details, again, of income and real estate sales. And as you said, there's no record of such a disclosure in Justice Thomas's 2014 report. He did file a report. He just did out one you quote in the story by name, Ginny Cantor, who to my mind, and this is just editorializing, Ginny Cantor is like the gold standard when it comes

to ethics law. And she's very categorical in saying he needed to report his interest in the sale full stop. So if there's a clear facial violation, like what are the enforcement mechanisms that the law contains that we might potentially see or should be thinking about? Yeah, it's a great question. Let me say two things. Before I get to that, I just want to address the whole personal hospitality exemption issue, which a shocking amount of ink has been spilled on at this point. So as you say, the phrase personal hospitality might be a capacious phrase. And if you actually look at the statute, and I'm no lawyer, but we talked to a lot of lawyers, the section of the law, which is the Ethics in Government Act, was passed in the late 1970s. And it's been amended since, but this talked to a lot of lawyers. The section of the law, which is the Ethics and Government Act, was passed in the late 1970s. And, you know, it's been amended since, but

this part is basically unchanged. The section of the law that lays out what you need to put in these annual disclosure filings, they say, you know, you have to list gifts. And then there's some carve-outs to which gifts you have to list. The carve-out for personal hospitality, it doesn't say you don't have to list any personal hospitality. What doesn't say you don't have to list any personal hospitality. What it says is you don't have to list food, lodging, or entertainment extended as personal hospitality. So going back to the first story, again, the experts we talked to said that some of the travel that we reported on might fall into the noun lodging, but things like private jet flights or cruises on a yacht that were actually transportation just would not count as food, lodging, or hospitality extended as personal hospitality. So at least that's our view on that issue. The question of enforcement and

potential penalties is a really good one. And one thing that we've realized as we've dug into this is the entire sort of ethics infrastructure for the Supreme Court, and actually just for the judiciary at large, is incredibly opaque. I've reported on campaign finance and sort of ethics issues and other branches of the government, like the legislative branch and also the executive branch. And in those parts of the federal government, there's an entire infrastructure of ethics lawyers, people like Ginny Cantor, and sort of bureaucrats who process these forms are available for consultation and that sort of thing. And there's potential penalties like getting fined or fired from your job. And actually, the statute itself refers to civil and criminal penalties if you knowingly or willfully

falsify these forms. When we started looking into this, the natural question was your question, which is how does this work for the courts? And I'm sad to say that we don't actually have a good answer for that right now. There is the Judicial Conference, which is this administrative body that takes in these financial disclosure forms. But the judiciary, unlike the executive branch, for example, it's not subject to the Freedom of Information Act. It's incredibly opaque. You can't even find the names of the judges who are on the financial disclosure committee of the conference. And so we don't actually know at this point what happens when Justice Thomas or any other federal judge

sends in one of these forms, like whether it just goes into a filing cabinet, whether anyone looks at it. We have been able to find very, very few examples of enforcement of this law for judges, basically ever. So we're very interested in that question. Just on this question about whether the law is violated. I mean, so far, the only defense I've seen, and it's not a defense at all, to be clear, is that none of this changed his votes. But that just is not responsive to whether he had an obligation to disclose it. And it's also just kind of beside the point. Like, if you're pulled over for speeding, you don't get to say, but there's no dead body.

Like, I didn't hit anyone. And part of the problem is, or at least seems to be, that Justice Thomas pretty sincerely believes that powerful people should be protected from the very little accountability and transparency that disclosure requirements provide. And also seems to think that bribery or at least financing judicial campaigns to purchase results and some amount of political corruption is just legal. He just believes that. Yeah, I mean, it's interesting. And to some extent, the question of influence is a empirical question that we hope to do more reporting on. And I'm contractually obliged to say that if anyone has information, they should reach out to me about that. But I think as a non-lawyer, when I started doing this reporting, I was sort of thinking about Supreme Court justices in a kind of binary fashion of liberal or conservative. But what I realized as we started reporting on this is that that's really obviously not the right way to think about it. And

even with Justice Thomas, who's known for having these sort of stubborn views and writing concurrences on everything and that sort of thing, his views have actually changed on some issues over time. I mean, the most significant recent example of this that we've seen was on the Chevron doctrine. He wrote a opinion in early 2020, right before COVID started, totally doing a 180 on, or what I'm reading as a 180 on Chevron. You know, he openly criticized his own Brand X decision from 2005. And so, yeah, we've gotten some kind of pushback, people saying, well, you really believe that a Supreme Court justice, and in particular, Justice Thomas, would be subject to influence. The man's like an independent thinker. But when you see a clear example of a just change in his position, I mean, the natural question is to ask, well,

how does that happen? I think, again, that's kind of an empirical question. I don't know how it happens. And I'm not saying that's necessarily connected to Harlan Crowe, but I would say that Crowe is involved in organizations like the American Enterprise Institute that do advocacy on a whole range of issues, of course, but they publish scholarship on, for example, like the Chevron Doctrine and why the law should change on that. So when you, again, I'm not saying there's evidence of a connection on that

particular issue, but the idea that Justice Thomas or any other justice is sort of born, fully formed like Athena, I think is just wrong. And I'm actually curious what you all think about this question of influence on Supreme Court justices and how to think about that. I'll just say one thing for our listeners. So Chevron doctrine is one that folks have probably heard of, right, just a general doctrine of deference to administrative agencies. Brand X is, as Justin just said, a Thomas-authored opinion that takes a very, very strong view of Chevron, basically to say that agencies can change their mind about what a statute means

under some circumstances, even after a federal court has already construed that statute. So it's viewed as a pretty broad reading of the kind of imperative to defer under lots of circumstances to the views of administrative agencies about what statutes mean. And I think that's a really, really nice example of genuine evolution by Justice Thomas. And again, I hear you not to be making, because you can't at this point make a strong causal claim about that, but it is something noteworthy. And it does happen at the same time as you have this kind of dozen plus years of this real ascent of anti-administrativist sentiment on the court and on the part of forces lobbying the court. So I think that's a really, really important point. And one that I'm not sure that you could sort of trace evolution in the same way, but thinking about Justice Thomas's

jurisprudence and disclosure in particular, and I wonder if we'll see this defense materialize if we're thinking about far-fetched defenses, which is something like Justice Thomas actually just thinks disclosure requirements are unconstitutional. So Citizens United, people probably know, is a 5-4 decision in which the court strikes down these limits on corporate spending in federal elections. But in a lesser known part of the opinion, the Supreme Court upholds 8-1 federal disclosure requirements. But of course, you know, three guesses as to who the one dissenter was, Justice Thomas. So, you know, maybe all we're seeing here is like principled living of his constitutional values, and he is not disclosing because he thinks the Constitution doesn't permit these disclosure laws.

Is that a defense we're likely to see? Well, it's really interesting, actually, and this is something that we're still reporting on. But Chief Justice Roberts actually back in 2011 wrote in his year-end report on the judiciary, which is this strange document that's released at like 6 p.m. on December 31st every year, so no one ever reads it. But actually, this was sort of in the wake of a previous Justice Thomas disclosure mini-scandal where he actually had to amend a number of years

of the same disclosure filing that we're talking about because he hadn't disclosed his wife, Janie Thomas's income. But anyways, to the point, Chief Justice Roberts wrote this really interesting essay about the Supreme Court and ethics. And there's actually a section specifically about this disclosure law that we're talking so much about, in which he says Congress passed this law that requires judges and justices to file these disclosures. And then there's a line in there, and this is not a verbatim quote, but it essentially says, the Supreme Court has never considered the question

of whether Congress actually has the power to impose these rules on the Supreme Court. And then there's the next sentence is something like, but nevertheless, the justices have filed the disclosures or something like that. So I read that as him sort of raising the question of whether this law is constitutional when it comes to justices, which is quite interesting. But at the same time, they file these things every year and they sign them. And the signing page, you can very easily find these online or LinkedIn or story. They're signing a page that says, you know, something about if you falsify this, there's civil and criminal penalties, and they've been filing these for decades. So I don't know what to make of that. Because, you know, if my view was that it was unconstitutional, I think I would just not file it. Yeah. A part of me wonders whether

we've discussed kind of our reactions to the story. I've been speculating about some other people's reactions to the story, in particular, Sam Alito's. And I wonder if he is enraged or at least annoyed at the thought that he's getting screwed. I mean, he is the guy who allegedly leaked the result of a Supreme Court opinion to his rich couple friends, the rights, and all he got was some hospitality, like no private jet, no home purchases that we know of, at least. So Justin, because we're relentlessly fair and committed to airing both sides, we wanted to discuss with you some of the responses to the initial story and give you a chance to respond to some of the criticisms of the story. So just to take one, for example, what do you say when people offer such devastating rejoinders as,

are you saying it's illegal for a Supreme Court justice to have friends? Right. No, it's not what we're saying. I think the reason that we thought this was significant and newsworthy, there are sort of two reasons. One is that just the scale and the frequency of these gifts of luxury travel and the dollar values are just extraordinary. I have personally never been on a private jet, but I now am deep in the world of private jet travel. And I can say that Harlan Crowe's private jet, it turns out to be a particularly nice private jet.

It's a Barbardier Global 5000. It's top of the line. And if you were to charter one of these, which you can do just on the open market, you're talking about $10,000 to $15,000 per flight hour. So very, very quickly, that adds up to my annual salary. We're talking about multiple private jet flights that Justice Thomas took. It's very possible we don't know about all of them because it takes a lot of reporting

to prove that somebody is on a plane. And just parenthetically on that, one of the private jet trips we wrote about was absolutely not a family vacation. It was a trip from Washington, D.C. to New Haven, Connecticut for three hours, and then the jet turned around and went back. So the idea that all of the travel we wrote about were family vacations, I mean, I don't mean to knock New Haven here, but that's not... You can. This is a safe space to do that. Yeah, I don't mean to knock New Haven here, but that's not... You can. This is a safe space to do that. Yeah. I don't think that's... It's not the normal fact pattern of a vacation.

And this yacht that we wrote about, it's called the Michaela Rose. I mean, it's not just sort of a pleasure boat, although I guess it is that, but it has a staff of like 10, 15 people, full-time workers who are cooking and cleaning and serving you. And we're talking about multiple cruises on that around the world. Same with this Adirondacks resort that Harlan Crow owns, which was actually originally built by Marjorie Merriweather Post, the same heiress that built Mar-a-Lago. It's not just like a lake house. It's essentially like a private hotel that also has a full staff. So seeing these trips like year after year, it's not a normal friendship where you stay at your friend's lake house or

something like that. And then also the other reason we thought it was noteworthy is that Harlan Crowe is not just a guy. Not only does he have a lot of financial interests, he's been very engaged in spending money on various ideological projects specifically about the law and the courts. So I think putting those two things together to us made it newsworthy. So was the Wall Street Journal's editorial board's criticism of your initial piece as like a smear of Justice Thomas because of some of your word choices like superyacht? Was that a fair attack? It turns out there's actually like a technical definition of super yacht. And we

actually checked to make sure, I mean, this is like, I think it's like 160 feet or something. I mean, this yacht, this yacht, according to the yacht people we talked to is firmly within the definition of super yacht. So I would say that it's not fair. Well, maybe, maybe they just needed a trigger warning when you were using the phrase luxury trip. So. Right. Justin, while we have you, we have to ask, is it fair to say there could be more shoes to drop in terms of your reporting on this topic? It's definitely possible. I mean, my two colleagues and I are actively reporting.

We've gotten some really interesting responses and tips in response to these stories. And I should say, I mean, we genuinely are interested in any Supreme Court justice on either side. I welcome that. So that's sort of all I can say for now. Justin, thank you so much for joining us. We really appreciate your time. And congratulations on all this wonderful reporting. And we look forward to following, you know, additional stories as they may develop. Thanks for having me.

We also learned some other things about Harlan Crowe since our last episode, and we wanted to take a couple of minutes to highlight those here. So the Washingtonian has reported, and that reporting has been augmented by a number of firsthand accounts that I've seen circulating on social media of people who have spent time in Crowe's many properties properties. The Crow is an avid collector of Nazi artifacts. Among his

private collection are two paintings by Hitler, a signed copy of Mein Kampf, and various items of assorted Nazi memorabilia. Crow also evidently owns a garden full of statues of the 20th century's worst despots. So, wow, where to start with all that? So I'll start with a question, which is, I would be curious if there are more pictures from Judge James Ho's swearing in, like where was the autographed copy of Mein Kampf during that swearing in? Like, was there a Pol Pot statute lurking in the background? These are just some questions I have. At least in the reporting so far,

ProPublica has not actually addressed all of this. But I mean, I have to imagine, given the enormous sort of universe of individuals who evidently traverse these properties and were present at events like presumably Judge Ho's swearing in, there are other people who have information that really could help enlighten the public about all of this. So I hope that Justin's call is heated like presumably Judge Ho swearing in, there are other people who have information that really could help enlighten the public about all of this. So I hope that Justin's call is heated and that others come forward. We should say about Judge Ho, an aside, and then we'll get back to the Nazi memorabilia in a moment, which is that the US News released like a teaser of their law school rankings this past week, just I guess the top 14 law schools. There are enormous problems with

US News rankings, but let's put all of that to one side for just a moment. And note the fact that the top ranked schools tied for first this year are Yale and Stanford, and that those schools have something in common, which is that Judge Ho and several other conservative jurists won't hire from them. It just raises a question, is this causation? Is it correlation? Hard to know. We're not empiricists. But just it's a curious factoid we wanted to bring to our listeners' attention. Anyways, back to the Nazi memorabilia, which is a line I never thought I would have to utter on a Supreme Court podcast. But here we are. In light of this reporting, we've had to endure for at least a week now all of the takes of actually collecting Nazi memorabilia is good and very normal. So a representative take

comes from Jonah Goldberg, who said on Twitter, it's not a tribute to evil or something. It's an attempt to commemorate the horrors of the 20th century in the spirit of never again. Harlan Crowe is a deeply honorable, decent and patriotic person. As shocking as this all is, we actually didn't want to lead with it because we think that Harlan Crowe's Nazi collection is actually not the most important and pressing problem here. It's a horrifying sideshow, but what's actually most important is the rank appearance of corruption that the Crowe-Thomas exchanges, including the ones we were just talking about with Justin, raise. But still, the Nazi memorabilia

warrants a few minutes of our attention. Yeah, I mean, like, what the fuck, right? Who collects paintings by Hitler? But also, I think the defenses of Crow's Nazi memorabilia collection underscore part of the reason why Thomas's relationship with Crow is problematic, because as the defenses suggest, like, people who knew Crow

leapt to his defense as if they felt some sense of loyalty to him or obligation to him. I mean, it's no surprise that people feel warmly toward people who give them really nice things. You know, Crow seems like he has basically purchased this army of people around him by currying their favor and giving them access. And because he was their friend, you know, friend being a capacious term here to me and someone who gives you a bunch of free stuff and access and therefore you socialize with them and feel warmly toward him like they're normalizing his behavior. And you know, friend being a capacious term here to me and someone who gives you a bunch of free stuff and access and therefore you socialize with them and feel warmly toward him like they're normalizing his behavior. And you know, now they're saying like this thing my friend is doing

owning Nazi paraphernalia is cool, like normal people do it. Yeah, that kind of army of defenders who have sort of leapt forward with this indignation at the sullying of Crow's name is evidently what pointing out his penchant for collecting Nazi memorabilia is, I think is right. Like it just drives home that he has this cadre of individuals who are clearly beholden to him. And it's really problematic to have public officials in that group. We also wanted to draw our listeners' attention to a remark from the Chief Justice during the final week of the March sitting. So this happened before the latest reporting on the Thomas's ethical and financial entanglements, right? Remember, Crowe gave a lot of money to Liberty Council, where Ginny Thomas worked and received a salary. But this is an

excerpt, again, from a Roberts question in Polselli versus IRS, which was argued on March 29. So let's play that clip here. Well, don't you normally assume that the financial records of a husband and wife are intertwined? Pretty interesting. It is. I mean, like, I guess the enforcement we're going to see is just like some potentially passive aggressive comments or questions at oral argument. You know, it would be nice to see something more than that from the chief justice. But that's that's what we've got.

Roberts could take steps here, like absolutely, no matter how opaque the workings of the Judicial Conference are and how unlikely any kind of civil action against a Supreme Court justice, which I do think actually an enforcement provision of the Ethics in Government Act does permit the Attorney General to file a civil enforcement action. But whatever the chances we might see any of that occur are, Roberts could absolutely take any number of steps in response. And if he chooses to stay silent and do nothing, I think he owns an enormous amount of this story. Oh, yeah. So that covers the latest entry into the ethical bonanza around the court.

We also have some news about the continuing landscape of the post-Dobbs America. First is that Idaho became the first state to pass a law that explicitly and specifically prohibits some out-of-state travel for the purpose of obtaining an abortion. Idaho made it a crime to facilitate minors obtaining abortions out of state. That conduct is now subject to two to five years in prison, and the legislature labeled it as a trafficking crime. This law just kind of underscores that someone other than in addition to Matt Kaczmirek, Andy Oldham, and Kurt Englehart, aren't so sure about the statement in Brett Kavanaugh's concurrence that overruling Roe would actually get the federal courts out of the business of evaluating abortion restrictions. In his concurrence, Kavanaugh specifically mentioned travel restrictions as impermissible. Haha, jokes on him and all of the

women and girls in the United States, I guess. Yeah. And the fact that the law is limited to minors should remind people of early anti-abortion strategies, which also used restrictions on minors as essentially a wedge to begin to take down broad protections for abortion. That is like the first step on the way toward eliminating broader rights to abortion across the board. This is very similar to what is happening right now with respect to transgender rights and care, targeting kids, and I think targeting kids with an eye toward eliminating health care for transgender individuals entirely. So kids are just the first step. Irene Carmon had a great piece in New York Magazine a week or so ago titled The Shared Anti-Trans and Anti-Abortion Playbook that people should really check out. But of course, that is not all the breaking news in

the post-Obs America in the last week. We also saw the Iowa Attorney General announce that that office would stop paying for emergency contraception for rape and sexual assault victims as it previously had. The office said it wouldn't pay for emergency contraception like Plan B, as well as abortion medication or other abortion care. So again, further evidence that someone other than Matt Kazmarek isn't so sure about the statement in Justice Alito's majority opinion in Dobbs that the case was just about abortion and had nothing to do with other rights like contraception. How curious and cruel. Additionally, Florida adopted a six-week abortion ban, which is essentially just an abortion ban full stop since most people will not know that they are pregnant six weeks after their last period. And any state adopting such a ban is enormously

consequential for the individuals in that state. Florida is especially consequential, both because it has a very large population and because until the six-week ban, it had been the only state really in the Deep South that still permitted abortion later in pregnancy. And so it had a lot of out-of-state individuals seeking abortion care there. So this is going to create just another geographic and other set of obstacles for individuals in the Deep South seeking abortion care. So I think now we will return to where things stand on the Mifepristone lawsuit. We are recording this episode on Friday afternoon. So what we're going to do is explain what is happening as of right now and provide an update if there are additional developments before Monday morning. Judge Kesmeric, recall, basically said that he was staying the FDA's approval of

mifepristone, which would make mifepristone an unauthorized drug that could not be prescribed or distributed. But he stayed that ruling for seven days, meaning whatever is left of his ruling goes into effect at the end of Friday, unless the Supreme Court does something before then. So late Friday afternoon, Justice Alito, who is the circuit justice for the Fifth Circuit, that just means he oversees applications from that circuit. Anyways, Justice Alito issued an administrative stay of the ruling below. An administrative stay prevents the ruling from going into effect, so it preserves the existing rules with respect to Mipha Pristone, at least the rules that existed before Judge Kazmiric and the Fifth Circuit got involved. But an administrative stay is temporary. It does

not indicate how the full Supreme Court will rule on the request for a stay. And this administrative stay was issued to be effective until Wednesday. So that means we can expect the Supreme Court to say on or by that day, Wednesday, whether the full court will stay the rulings while the litigation regarding Mifepristone remains ongoing, or whether it will stay the rulings maybe until the Supreme Court schedules argument on and then decides the stay request. The point is, Judge Kazmierczak's ruling and the Fifth Circuit's ruling are not in effect at least until Wednesday. That's what the administrative stay does. So what is the status of Judge Kazmierczak's ruling right now? So the rest of the clown brigade, or at least the part of it that sits on the U.S. Court of Appeals for the Fifth Circuit,

got in on the action following a request from both DOJ and the drug manufacturer Danko. The Fifth Circuit partially stayed, that is put on hold. Judge Kaczmarek's ruling to the extent Judge Kaczmarek's ruling was about the FDA's 2000, year 2000 authorization of Mifepristone. Because the Court of Appeals said the plaintiffs hadn't brought a timely challenge to the 2000 authorization since the challenge was brought more than two decades later. As a brief preview of how ludicrous this Fifth Circuit opinion is, the Fifth Circuit described themselves as, quote, unsure about whether this was in fact an error because it was, quote, a close question. My guys, it is not. It is not. In terms of what the Fifth Circuit did, so it basically either modified the ruling or upheld the ruling, kind of depending on how you read it, to reimpose various restrictions on mifepristone that the agency had applied prior to 2016.

And they just kind of thought they'd slap a few more on there because why not? Like, what does the FDA know? These judges were able to uncover things in their five-day review of the record that the FDA had somehow missed while overseeing this drug for over two decades. I think I might call up Andy Oldham and Kurt Englehart and be like, you know, sometimes I get cramps. And like, the internet, right? And like, FDA tells me Advil might do the trick. Do you have any recs? Because I don't know. These are women's meds. Just curious, like, what do you guys think? Do you think he'd appreciate that? The anti-science, anti-medicine, and just like unbelievable arrogance of these male jurors deciding to substitute their apparently superior expertise for those of the expert agency that is the FDA is just so galling. So in their infinite wisdom, what additional restrictions did these

federal judges impose? So one, that mifepristone has to be prescribed by a doctor. Two, that it has to be dispensed and prescribed in person. This would mean, I think, three separate in-person visits to obtain medication abortion. Obviously, really difficult for people living in certain areas, in certain states where there are no abortion providers, in conditions that make it very difficult for them to take the time off work that would be required to make multiple successive visits. It also includes a directive or guidance for how mifepristone should be used, limiting it to seven weeks rather than 10 weeks after a person's last period. There are some questions regarding whether off-label use beyond the seven week period could continue, although Danko, the manufacturer of Mifeprex, the brand name Mifepristone, who's a party to this lawsuit, I think raises real concerns about whether post

seven-week prescription could be possible under this Fifth Circuit order. Yeah, so I'm glad you mentioned that because I kind of wanted to make an additional point before we dig into the minutiae of the opinion, which is it feels like people are not as enraged or horrified by this ruling as they should be, in part because the reasoning of the opinion is specious and absurd. Like, it's clear the judges are just, like, shoving law to the side in Overton window that Matt Kazmirik has been pressing. Because think about people living in states where abortion isn't legal. Now they have to make three visits out of state. Think about virtual clinics, which are no more with the in-person dispensation requirements. Think about labeling. Pharmacists and distributors

can't sell a drug. They cannot distribute a drug with wrong labels. That is a violation of federal law. And so all of that is a huge, huge attack on access to mifepristone because it means the incorrectly labeled drugs can't be distributed. And like Danko says, they have to go through a new application process in order to get the new label and get that all manufactured and approved, which could take months. Jen Biopro, who's the maker of the generic version of the medication abortion pill, Mifepristone, says in their application to the Supreme Court that because they are the maker of the generic version, if the Court of Appeals is allowed to just reinstate the previous regime, they are not going to be able to allow their pill to be used

unless and until an entire process happens. And again, that's just part of the delay, obstacles, and whatnot that is going to create this real gap in access to medication abortion if this ruling is allowed to go into effect. It's reminding me of some of the initial reactions to the Supreme Court's decision in SB8, right, which sort of said, well, maybe there are a couple of defendants who could still be sued, authorities responsible for state doctor licensing, things like that. So it's not, so this was a mixed ruling that actually did preserve some possibility of challenge to and federal court review of the Texas, you know, bounty law SB8. And this strikes me as sort of similar, like it is

unbelievably restrictive. It doesn't completely go all the way as the district court opinion did. But what it leaves intact is just such a shell of the prior access to Mifepristone that it's much more accurate to say this is basically a reaffirmation of the Kazimieric opinion rather than some sort of compromise or interim position. And that's all sort of Overton window shifting. Yeah, like in light of all of the interim obstacles and problems it's created in order to move to this like pre-existing slash alternative regime. Just want to remind people there is a competing injunction out of a federal district court in Washington state that forbids the FDA from changing Mifeprift Stone access in the, I

think it's 17 states that brought the case. But that number doesn't include a bunch of important I think it's 17 states that brought the case. But that number doesn't include a bunch of important states like New York that did not join the suit. And so presumably, if this Fifth Circuit order went into effect, then all these restrictions that you just identified, Leah, would apply in states like New York. California, I think, is also on the list. So huge impact on the ground in most of the country. Okay, but back to the Fifth Circuit. So the opinion, as you referenced, Leah, is outlandish. It is bizarre, but it is just slightly different in its bizarreness and outlandishness than the Judge Kaczmarek ruling

was. So we'll walk through it now. We'll start with standing, right? The basic idea that plaintiffs are only supposed to be able to sue and get this kind of relief if they can establish a substantial risk of future injury or future injury that is certainly impending. And on all of this, the Fifth Circuit's analysis is like analysis in scare quotes is shockingly lazy and laughable. It rests on a few different steps. We will pick them apart and draw them out. And Leah, you had a great Twitter thread breaking this all down. So why don't you just like walk through some of the highlights of how bad the standing analysis is? I mean, the overarching TLDR of

their analysis is the plaintiff organizations are big because they're big. The Fifth Circuit says it stands to reason that somebody in the organization will be statistically sure to have to provide the kind of care they don't want to provide to people who experience complications from medication abortion. That's the overarching claim. And start with the threshold conceptual framework they use, which is just not how standing analysis works. In a 2009 opinion by Justice Scalia, Summers versus Earthland Institute, the Supreme Court specifically rejected an argument that an environmental organization with over 700,000 members had standing because it stood to reason and was a statistical certainty that one of their members would go to an area affected by the agency policy they were challenging. Justice Scalia rejected the idea that there could be standing when there is a statistical probability that some of those members are threatened with concrete injury. He said that would make a hash of the court's prior cases, Lujan v. Defenders of Wildlife, National Wildlife Federation v. Lujan, as well as Sierra Club, that had analyzed whether

individual particular members, identifiable members, would likely experience a future injury. But even applied to the specific facts here, that is, even if you assume that, you know, the law is what it isn't, right, the Fifth Circuit's analysis makes no sense because their chain of causation is women will experience complications, those complications will send them to emergency rooms and the plaintiff's doctors, and that will harm the plaintiff's doctors. And at every single step of the analysis, they don't have any support or any real support for these claims, and the inferences between all of the steps don't hold up.

Okay, so let's walk through a couple of the logical steps in the reasoning and the evidence that supposedly supports this reasoning the Fifth Circuit offers. So the Fifth Circuit says the warning label from Mifepristone says that for somewhere between two and seven out of 100 women, the medication abortion treatment will not work. And if this happens, the person will talk to their provider about a surgical procedure. The Fifth Circuit then takes this to mean that of at least 100,000 women, so 2% of the 5 million women who've taken medication abortion will talk to their providers about surgical abortion. Okay, fine. But then the Fifth Circuit says that emergency room care is statistically certain in hundreds of thousands of cases. What? And that these... Where does that...

I mean... And they go on to say that these plaintiffs will inevitably have to treat massive complications or be asked to perform surgical abortions. But like none of these things

follows from the other. No. And like if medication abortion doesn't work, you talk to your provider who might recommend another course of medication abortion or surgical or procedural abortion,

which doesn't affect the plaintiffs since they don't offer abortion care. And nothing the plaintiffs said comes close to suggesting that this number of women go to emergency rooms versus talking to their provider when they are still pregnant after taking medication abortion. All they've established is some number of women won't successfully end their pregnancies. But also the idea that these doctors are harmed in the event that women end up with complications and go to an emergency room requiring emergency care. I mean, some of them are emergency room doctors, and they're apparently harmed because they have to see patients or like patients with severe complications. That is your job. I mean, one doctor said it hurt their feelings that it was

stressful and quote, some of the most emotionally taxing work I have done. My feelings are hurt by how dumb the Fifth Circuit decision is, so apparently I have standing to appeal it. This is now the law. Oh, God. This ER part drives me so crazy. I mean, people present in emergency rooms facing illness and injury as a result of activities that, you know what, ER doctors might not approve of. Sure. Whether we're talking about guns or drugs or physical altercations with family members

or strangers in bars. And the doctors' moral objection to the underlying conduct that resulted in the presenting condition can't possibly matter in establishing standing for something as far upstream as approving a drug. It's just insane. But it's also, to my mind, this part of the opinion was especially galling because if we actually are going to take seriously like the injury to doctors in emergency rooms right now,

the real injury for anyone who is following the post-ops landscape that I think the law should care about is doctors who are prevented by restrictive state laws from providing needed care to pregnant patients in distress until they are literally on death's door. Those are the ER doctors who are being injured right now,

not the ones that the Fifth Circuit is conjuring up in its opinion. Yeah. If you don't want to treat women experiencing life-threatening severe complications, don't fucking litigate to restrict access to abortion. It's not that hard. So as we mentioned, like that was a Fifth Circuit's analysis, slightly different than some aspects of Judge Kaczmarek's ruling, which was so bad, he lost the op-ed pages of the Wall Street Journal. Like, do you know how hard that is to do and how embarrassing that must be for him? The editorial board said Clarence Thomas on the personal jet, that's fine, right? Call the ProPublica piece a smear. But Maddie cosplaying a

scientist, that goes too far for them, right? But don't worry, the National Review came to his defense, as did basically the Fifth Circuit. Right. No, they did, definitely. So let's turn to merits, like the court's assessment of the legal claims in this case. And that too is beyond redemption. So the court says that the FDA's 2016 decision to loosen restrictions on mifepristone was arbitrary and cap court says that the FDA's 2016 decision to loosen restrictions on mifepristone was arbitrary and capricious because the FDA based the decision on studies where mifepristone was used with restrictions. And a couple of responses to that. One, so? Like nothing requires the agency to study a medication under the exact same conditions. The point is that in

addition to the studies on which it based the loosening of the restrictions, 15 plus years of evidence that mifepristone was safe. And so that's response one. But it's also, of course, because there's so many untrue claims in this opinion, it's just untrue on the facts. The FDA looked at a bunch of different studies, including studies with different restrictions, relaxed in reaching its decision. The court also says the agency decision was arbitrary because it stopped requiring the reporting of adverse but non-fatal events. But again, it did this after 16 years of observing the safety of Mifepristone. And I would say the larger point here is that all of this involves second-guessing the court, second-guessing the FDA's determination and substituting the court's

judgment for the experts. And, you know, this part of the Fifth Circuit's opinion is enormously problematic in all the same ways that the district court opinion was. Yeah, it reminds me of the scene from Knives Out where one of the characters says, it's so dumb, it's brilliant. And Benoit Blank responds, no, it's just dumb. So, you know, Fifth Circuit decision on the merits, or I guess, you know, part of the stay analysis is also Comstock Act curious, you know, suggesting it might in fact be a federal crime to distribute medication abortion through the mail. All of this insanity crept into the irreparable injury analysis where the Fifth Circuit said the federal government somehow couldn't show an irreparable injury because the Fifth Circuit was just returning things to the way they were in 2016. I mean, the way things were could be worse than the way they are now, right, which would be some irreparable injury.

And in any case, pre-2016 was before Dobbs. So like also different conditions. Also, this just misunderstands the effects of their ruling as we kind of surveyed because it might prevent marketing distribution, prescription of Mifepristone while this ruling is in effect. So we highlighted many of the shortcomings of the various parts of the opinion. Adam Unikowski, who's a partner at Jenner & Block, also a frequent SCOTUS litigator and a former Scalia clerk, has several phenomenal posts on his substack and also on Slate just eviscerating this ruling. And for those who want a breakdown of all of the individual shortcomings of both the district court and the

Fifth Circuit opinion, cannot recommend those posts highly enough. Other random assorted thoughts. I mean, one is both the Fifth Circuit's ruling and Judge Kaczmarek's ruling display what I would describe as anti-abortion exceptionalism, basically crafting exceptions to various principles of law for cases involving trying to restrict abortion further and just getting back to the projection that was the Supreme Court's decision in Dobbs. you know, one reason Dobbs gave for overruling Roe and Casey was because of something the court called abortion exceptionalism, this false idea that somehow in the name of protecting abortion rights, the Supreme Court twisted other areas of law to do so. And it's like, pot, I have a kettle to show you. And yeah, you know, I also wanted to say a little bit

more about why like, even if the Supreme Court undoes this ruling, like, that's not going to fix the problem. Like, anti-abortion advocates know Kaczmarek and now, you know, several members of the Fifth Circuit are basically going to give them a-abortion litigants something, even if not everything, all right on the march toward a national abortion ban or national abortion ban of particular procedures. And the fact that the Fifth Circuit joined this insanity, this is not a problem of one lone judge. This is now a systemic problem in light of the appointments of the prior administration and probably other ones before that. So the administrative stay gives us really no indication about what the court might do after that. And so we wait.

Okay, so we are going to briefly preview some of the big cases the court is going to be hearing in the April sitting. But maybe let's flag one thing before we do that, which is that the Senate right now seems to be in a judicial confirmation holding pattern. I think at last count, there were 18 judicial nominees awaiting floor votes, and that has been the case for a bunch of weeks. So they're out of committee, they are on the floor, they are ready to be confirmed. There are enough Democrats to support them, at least in the abstract. But the Democrats right now have a numbers problem, which is that Senator Fetterman was in the hospital, but is expected to return and resume voting next week. But also Senator Dianne Feinstein has been out for quite some time. And we don't have a clear return date for her, which is super concerning.

And there are increasing calls. I think, you know, sort of Democrats seem kind of divided on this question, but there are definitely increasingly loud calls for the senator to retire, clearing the way for the appointment of somebody who could take votes on these really important judges who are, again, ready and willing to serve, but just there are not enough votes. And I don't know if we're waiting for Feinstein to return when that's going to change. Yeah, I mean, look, if she's unable to return, I'd say like within a week, like I am clearly on the side of like, she needs to resign immediately. I mean, you think about it, we're basically one year out from the summer recess before an election, during which senators will not be available to do judicial confirmation. You need to be there for votes. This is the thing a Democratic Senate can do in a world of a divided Congress. You cannot leave these vacancies like you need to be clearing the decks. And it's just, it's appalling. Okay, now on to the other things that the Supreme Court does when its justices

aren't private jetting and super yachting and white lotus saying and bohemian groving around the world. The Supreme Court has a busy final argument session. First few sessions were pretty light court packed a bunch of cases in for April, because it is such a jam packed sitting, world. The Supreme Court has a busy final argument session. First few sessions were pretty light. Court packed a bunch of cases in for April. Because it is such a jam-packed sitting, we're just going to preview three of the cases that the court is going to be hearing this week. One of them is Pugin v. Garland, an immigration case where the issue seems somewhat relevant to current events. So this is a case about the meaning of the provision in immigration law that defines an aggravated felony. People who are convicted of aggravated felonies are not eligible for certain forms of immigration relief. They are also subject to immigration enforcement proceedings like

deportation and exclusion. And one kind of aggravated felony is, quote, an offense relating to obstruction of justice. The legal question in the case is whether an offense relating to obstruction of justice requires the offense to have some nexus or connection to an ongoing investigation or judicial proceeding, or whether an offense relating to obstruction can be anything that might make it more difficult to investigate, uncover, or prosecute a crime. and continues to surface in some of the debates about whether former President Trump and members of his circle committed obstruction of justice on different occasions, like firing former FBI director and communications with possible witnesses during special counsel investigations in January 6th hearings, and again, in the classified documents probe. This case is actually two cases, one involving Mr. Pugin and the other involving Mr. Cordero Garcia, that have been consolidated for purposes of argument. So a little bit about each of the cases. So Pugin has lived in the United States since 1985.

The government says that he is removable because of a misdemeanor conviction for being an accessory after the fact to a non-homicide felony for which he served three months in prison. And the government now says that being an accessory after the fact is obstruction of justice because it involves helping someone to elude punishment. Again, even though there may not be any investigation or judicial proceeding. Mr. Cordero Garcia is 80 years old, was lawfully admitted to the United States 60 years ago, was a lawful permanent resident beginning in 1965. His wife of 45 years, five adult children are all US citizens. He was convicted of witness dissuasion, which basically provides that anyone who attempts to dissuade a

crime victim or witness from making any report is subject to punishment up to a year. Cardero Garcia has actually been removed to Mexico, where he's been for over a decade, and he was convicted of other crimes, but the removal here was based on the witness dissuasion charge. So again, the question in these cases, does obstruction of justice refer to crimes kind of broadly involving a pending investigation or judicial proceeding, or is it narrower in its scope? Okay, let's move on to Groff v. DeJoy, which is a huge case about religious accommodations. The basic issue in the case is what an employer has to offer when an employee says that some aspect of their job is inconsistent with their religion and requires some sort of accommodation. Until now, the test has technically been if the accommodation imposes more than a de minimis cost on the employer, and that cost can be to the employer themselves or to co-workers or to other things that affect the work environment,

the employer does not have to offer the accommodation. So more than de minimis cost, not required. And I think it's pretty clear that there are five votes on the court to say an employer has to show more than a de minimis cost in order to get out of providing an accommodation. What is less clear to my mind is what the court will say the employer does have to show. The federal government says, look, it's right that the court has used this de minimis formulation in the past. But in reality, the law, properly understood, has always offered religious employees more protection than that language would suggest. And it really requires employers to show something like costs similar to the regular payment of premium wages, which is language used

in EEOC regulations, and that the law also requires taking into account the size and operating cost of the employer and the number of individuals who might ask for an accommodation. So the plaintiff here was a rural carrier associate for the Postal Service. In 2013, the Postal Service agreed to deliver packages on Sundays, and the plaintiff requested a religious accommodation not to deliver on Sundays. Part of the case involves the fact that there's a collective bargaining agreement and memorandum of understanding between the Postal Service and union and the accommodation would be inconsistent with that since it, you know, required work Sundays, you know, along certain criteria and among everyone. And so that was part of the hardship that the courts identified the employer would face, you know, essentially breaching or violating, you know, a term of this collective bargaining

agreement. I'm sure Sam Alito, champion of the working man, slash Justice Proletariat Alito, Das Kapitalito, is going to be very sympathetic to this concern. There's an, yeah, there's an amicus brief from AFL-CIO that kind of focuses on that aspect of the case. But I think people are thinking about, you know, the possible implications of a ruling in favor of the plaintiff employee here, you know, think about medical or healthcare employees who won't offer certain kinds of care or won't serve certain people. Do employers have to hire them and make accommodations for their beliefs? Or think about service providers, people who won't serve or sell to certain customers. Or more generally, think about

how the accommodation here imposes burdens and hardships on other employees. We talk about how the court is refashioning the law to allow conservative Christians, for the most part, to assert their religion and their religious beliefs in ways that impose costs on others, like, this is one such example of that. And it's things like this that the Establishment Clause used to be a safeguard against. It used to prevent forcing other people to expend costs or incur burdens to support your religious beliefs and exercise. But the court has basically read that out of the Constitution. I mean, you think about the potential combined effects of this case and 303 Creative, which we've talked about extensively on the podcast

about the wedding website designer, I mean, just could fundamentally reshape a lot of aspects of our collective public life from one in which one of the core features of pluralism is that people don't get to just object on the basis of identity characteristics to participating in providing commercial services to other individuals. And all of that could be thrown out the window by the court in this term. Yeah. Cool. Cool. Sounds great. Yeah, no, really, really looking forward to this one. Wow. All right. So the last case that we wanted to mention is Counterman v. Colorado, also a First Amendment case, but a very different kind of First Amendment case. And the issue in this case is what kinds of statements constitute true threats that are not protected by the First Amendment. So does a true threat entail only those statements where the speaker subjectively knew or intended the threatening nature of the statement? Or does it also include statements where a reasonable person would regard the statement as a threat of violence, regardless of what the speaker intended or knew? So the statements at issue here were directed at Coles Waitland, a singer-songwriter

who over the course of several years was subjected to increasingly hostile online messages. The man behind the statement, somebody named Billy Raymond Counterman, was charged with stalking and served more than four years in prison. The papers in the case say that he suffers from mental illness. And the statements began when Counterman posed as a promoter inviting Whelan to an event. Over two years, he would end up sending her around a thousand messages. That's what the police estimate. And the statements comment on Whelan's looks. Others are kind of familiar and falsely imply that they had a personal relationship, like, I'm going to the store. Would you like anything? And then there are those that, you know, sound more creepy and threatening, which is stuff like, I'm currently unsupervised, I know it freaks me out too,

but the possibilities are endless, or, you know, die, don't need you, or like, how can I take your interest in me seriously if you keep going back to my rejected existence, or staying in cyber life is going to kill you. In response to messages like these, Whelan blocked him. He would create new accounts to keep sending her messages. Counterman had actually previously been convicted of making threats in one case where he said, you know, to someone, quote, I'm coming back to New York, by the way, I will rip your throat out on site. So when the police approached him, as the Washington Post reports, Counterman maintained that the two had a tumultuous relationship. And although she had never responded to his Facebook messages, he said she covertly communicated with him through websites such as Radio 1 Lebanon and Sarcastic Bad Bitches. He said that she also left notes for

him in books at the library. She started having panic attacks. She canceled shows in response. So this is not the first time that the Supreme Court has asked, you know, what the category of true threats means. In a case the court heard several years ago, Alonis versus United States, the defendant posted online about how he wanted to see his wife's, quote, head on a stick and also made allusions to a school shooting, quote, hell hath no fury like a crazy man in a kindergarten class. Alonis said these posts were therapeutic rants and the court ended up reversing his conviction in a seven to one to one opinion. But actually, that decision in Alonis did not reverse the conviction on First Amendment grounds, rather rested on an interpretation of the federal law at issue. Basically, it said that the statute under which Alonis was charged required the government to prove the defendant intended the posts to be threats. But because the court concluded in that case that the statute had this requirement, it didn't have to answer the constitutional question of whether the government could criminalize threats, even where the defendant did not intend for them to be threatening,

but where a reasonable person would understand them to be threatening, or perhaps that the defendant was reckless and should have known that the statements would be threatening. So I have kind of competing intuitions about this case. You know, on one hand, I think about the case, the lens of gender violence and how misogyny and misogynistic threats are warning signs for subsequent physical violence and how even on their own,

they're a real barrier to women's ability to fully live their lives and participate in online fora and social media. You know, there's a brief by the National Family Violence Law Center that discusses the practice of civil protective orders and how requiring proof of a defendant's intent to threaten would really curb the availability of civil protection orders in domestic violence and family violence cases. That brief also notes statistics about how threats and

harassment are important predictors of physical attacks, you know, setting one study that found of women killed by their abusers, 41% to 50% had previously been threatened with death. On the other hand, is the reality that race plays an important role in people's perceptions and assessments of violence, likely violence, and whether conduct or statements is threatening. And that creates a real risk that racial minorities will be subject to more policing and disparate policing, and that their statements will be wrongly perceived as more threatening. On the other hand, the Lawyers Committee for Civil Rights points to the risk of threats that minorities subject to racial

discrimination and racial harassment experience and how numerous civil rights statutes prohibit threats without requiring the defendant's intent to create a threat. And I think as an illustration of these sort of cross currents in the case, you have countermen supported with amicus briefs by FIRE and the ACLU and Cato, and then Colorado supported by the Lawyers Committee for Civil Rights, different groups of First Amendment scholars, the federal government, the National Family Violence Law Center, and a diverse group of state amici. So I think there are, you know, kind of powerful weighty interests actually on both sides of this case. And I agree, it's really, really hard to know how they should shake out. So what do you think? What do you think is likely to happen here, if you have a sense's subjective intent? And could a jury or the government just rely on the fact that a statement appeared threatening as sometimes sufficient to show that the defendant intended it to be threatening or create fear? So here's a question kind of along those lines. How does one prove what's in somebody else's mind. This case, the standard was, would a reasonable person think that the words

would put someone in fear? And reasonable people can make that judgment. But how would the government prove whether this threat in the mind of the threatener was genuine. There's also a separate question of, well, what does the Constitution actually require? Is it that someone purposefully intended a statement to be threatened? Is it that they, you know, knowingly made the statement, knowing that it would be threatening?

Or is it that they recklessly caused fear? You know, it's a little bit unclear what the standard would be. Yeah, and the justice also asked questions in the Alona's argument about kind of hypotheticals that involve informing someone about a threat to them. So a friend tells an ex-wife, your husband wants you dead. That will cause fear. They might know it'll cause fear. But those kinds of statements are generally thought to be beyond prosecution.

There were also questions about who the reasonable person would be if the standard turned on. Would a reasonable person feel threatened? Here's one exchange along those lines. Well, but in context is right. What is it? Is it a reasonable person? And the examples that were given of the teenagers on the internet, or is it a reasonable teenager on the internet? It is such a thing. Sorry, Chief Justice. This argument also featured an Eminem reference. What about the language at pages 54 to 55 of the petitioner's brief? Dad, I'm making a nice bed for mommy at the bottom of the lake, tie a rope around a rock. This is during the context of a domestic dispute between a husband and wife. There goes mama splashing in the water, no more fighting with dad,

you know, all that stuff. Now, under your test, could that be prosecuted? No, because if you look at the context of these statements... Because Eminem said it instead of somebody else? Because Eminem said it at a concert where people are going to be entertained. So we have that to look forward to. All right. So finally, the court is issuing opinions, although at a very slow pace. And we got one opinion last week in Axon v. FTC, in which the Supreme Court held in a unanimous opinion by Justice Kagan that challenges to the constitutionality of the structure of agencies like the Securities and Exchange Commission or the Federal Trade Commission

can be brought in the first instance in federal district court, don't have to be exhausted first inside the federal agency whose structure is being challenged. And I thought there were a couple of sort of asides by Justice Kagan, maybe I was reading too much into them. But so she writes, our task today is not to resolve these challenges. And the challenges are basically that the administrative law judges or ALJs in these agencies are unconstitutionally insulated from presidential control. And you could just sort of feel the sigh of relief in her saying that today, at least we don't have to go there. Because it's very concerning what the court, the Federal Trade Commission, the Securities and Exchange Commission, these are agencies that

certainly some members of this court, Neil Gorsuch, first and foremost, but others too, I think think would love nothing more than to declare it unconstitutional, at least in terms of the scheme around appointments of the leadership. Well, also in terms of like whether they are allowed to adjudicate cases, Justice Thomas basically wrote separately in Axon being like, well, yeah, this is obviously unconstitutional, right? As is like most of the administrative state. Right, because he thinks agencies can't adjudicate. And he says this really clearly in his separate concurrence. And that would just be enormously destabilizing

in terms of all of the work that these agencies do. Like the bulk of which for many agencies is adjudication. So they would basically have to just kind of close up shop if in fact Thomas's views ever carry the day. But luckily, this is just a procedural ruling about how one makes these incredibly dangerous arguments, not if they win. So we'll have to await another opinion for that. One thing we wanted to highlight was an opinion that the court issued actually last month, but we haven't gotten to it. It's important, and we did

want to at least touch on this opinion now. And that was the opinion in Perez versus Sturgis Public Schools, which was a unanimous opinion by Justice Gorsuch. This is the case that we discussed on our episode that we recorded live at Penn, with Penn Law Professor Jasmine Harris on to preview the case. This is a case about this Sturgis School District's total failure to provide appropriate services to a deaf student, Miguel Perez, whose parents spoke only Spanish. The district did not provide Miguel with qualified assistance. They were not truthful with his parents about his progress. They inflated his grades, insisted he was on track to graduate until, as graduation was approaching, they for the first time informed them that he would not be receiving a diploma as they had been expecting.

And so Miguel's parents brought suit under the IDEA, the Individuals with Disabilities and Education Act, that resulted in the school district agreeing to provide Miguel with equitable remedies, including continuing schooling at the Michigan School for the Deaf. Miguel's parents also sued for monetary damages under the ADA, the Americans with Disabilities Act. And the question in the case was whether their ADA suit for damages could go forward or whether instead the parents had to pursue that remedy through the IDEA administrative process, even though damages can't be awarded under the IDEA. And even though that may have required the parents to reject the settlement that the school district offered them that provided compensatory education to Miguel. So the court concluded that the IDEA did not require these parents to exhaust, that is to try to obtain through the IDEA administrative process, claims for damages that you aren't even actually allowed to get under the IDEA. So these parents' ADA claim for damages

could proceed. This is the only sensible sane result in the case, which makes it a pleasant surprise that it is the one that the court reached. This is the case where, as we discussed, Justice Kagan asked the lawyer for the school district, what did you want the parents to do? Pound the tables harder and at argument acknowledge, you know, that parents are often without counsel and representation, meaning they are proceeding pro se, and they're just trying to get help for their kids. So this is a really good result and just kind of a sigh of relief. In less good, more potentially quite concerning news, also from a couple of weeks ago, the court granted cert in a so-called tester case.

A tester case refers to instances where the plaintiff in the case is what's known as a tester. And a tester is someone who kind of goes around looking to see whether there are violations of civil rights statutes and then is in a position to bring suit if there is, even though they might not ultimately be seeking, let's say, the underlying good or service that they are trying to determine, whether it's being offered to them on equal terms to other individuals. So for example, in fair housing cases, you know, involving race discrimination, you might have some testers who are white and testers who are racial minorities making inquiries at the same housing facility to see whether the landlord or

seller would rent or sell the place to both white testers and testers who are racial minorities. And if not, then the testers might sue saying they were discriminated against, again, even though they might not ultimately want to buy the house. And here, it's a tester case involving compliance with the Americans with Disabilities Act. And testers and tester standing are so important for a number of civil rights laws that it's really hard to uncover violations without having private individuals and individuals going out to see whether these statutes are being complied with. And the grant makes me really nervous because it's an early test about how broadly and aggressively and crazily the Supreme Court might read their earlier opinion in Trans

Union v. Ramirez, which is the first instance where the court struck down a statute authorizing particular individuals to sue on the ground that Congress didn't have the authority to authorize those kinds of suits in federal court. Don't forget to follow us at Crooked Media on Instagram and Twitter for more original content, post takeovers and other community events. And if you are as opinionated as we are, please consider dropping us a review. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Littman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell. Audio

engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Ashley Mizzou, Michael Martinez, and Ari Schwartz. and digital support from Amelia Montooth.