Strict Scrutiny - This is Kansas

Episode Date: November 18, 2019

Leah and Jaime recap a lot of the big November cases, including Kansas v. Glover, County of Maui v. Hawaii Wildlife Fund, Hernandez v. Mesa, and IBM v. Jander. They deduce that Justice Breyer was on fleek and that Justice Ginsburg’s clerks need to take a lesson about herd immunity.  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. Welcome to Strict Scrutiny, a podcast about the Supreme Court and the legal culture that surrounds it. I'm Jimmy Santos. And I'm Leah Littman. And we're your co-hosts today. We have a jam-packed episode today because the November sitting was pretty lit. First, we're going to

talk about some of the arguments the Supreme Court heard over the past few weeks. And I should note that we are not going to be talking about DACA because we're going to recap that argument in a special episode that we're really excited about. But after we talk about arguments, we're going to briefly mention a couple of cert grants, and then we're going to end with some nuggets of Supreme Court culture. You want to get us started, Leah? Yes. So let's dive right into it. One of the cases we wanted to recap is an interesting Fourth Amendment case, Kansas v versus Glover. Jamie, do you want to provide some background about the case? Sure. So this case involved a, it's kind of your typical Fourth Amendment vehicle pullover type case. So it involved an officer who was just on a routine patrol in his patrol car.

He saw a pickup truck that wasn't making any type of traffic violations, and the officer ran the truck's license plate and found that it was registered to a person whose driver's license was revoked. And so the officer then assumed that the person who was driving the vehicle was the same registered owner, and he pulled the driver over. It turned out it was the registered owner, Charles Glover, and the officer basically gave him a citation and let him drive away. But then Charles Glover did not just pay the citation. He challenged – he filed a motion to suppress the evidence that was obtained at the traffic stop, and he argued that there was no reasonable suspicion to pull him over. And, Leah, what usually happens when there's a motion to suppress filed in a criminal case? Then the judge will decide the motion to suppress.

What answer are you looking for, Jamie? Usually you'll have a hearing, right? Yes. Where like an officer will come in and the officer will say, you know, here's what happened. Here's why I did it. I had this information. Based on my training and experience, I have found that typically vehicles that are registered to drivers with their licenses revoked are being driven by drivers who had their licenses revoked. But in this case, the officer, as you said, made an ass out of you and me by just assuming

that that was the case. Yes. So the officer did not come in to testify. Instead, the state submitted just a stipulation from both parties that were just about the underlying facts. So the stipulation said, you know, the officer was driving his car. He ran the plate. He assumed that the registered owner was also the driver and pulled the driver over based solely on that information. And the trial court said, nope, that's not enough for reasonable suspicion.

The state Supreme Court ultimately said that's all that, you know, said the same thing. That's not enough. And they said, listen, there was a whole bunch of stuff that the officer in the state could have done to support reasonable suspicion. But they did nothing here. And that's not enough to satisfy the Constitution. Yes. And so the question here for the court is whether that assumption is sufficient to provide a basis for reasonable suspicion to pull someone over, or if not, what else would be required? Right. And so in this case, the state was seeking basically this per se rule that anytime any officer anywhere in the country sees that there is a vehicle with a suspended license who's, you know, registered to someone whose driver's license was suspended or revoked, that is per se reasonable suspicion to pull the person over unless the officer has reasonable, you know, has reason to believe it's not the driver.

So say the registered owner is Michael Smith and they see an older woman driving the car or something. If that information, then you couldn't pull the person over. But otherwise, per se rule. And Glover was seeking a more totality of the circumstances type approach, basically saying you should apply the doctrine the way you normally do. You have to have specific articulable facts giving rise to some reasonable suspicion that criminal activity was afoot. And specifically, I think the defendant is also partially arguing for a rule of like we need to be able to introduce evidence to rebut the idea that this is a reasonable

assumption. So there's one prior Fourth Amendment case, Florida v. Harris, that came up a lot in the argument. And there, the question was whether the fact that a dog who is trained to detect drugs, the fact that that dog alerts, i.e. signals that there are drugs like in a given house or a given space, is that sufficient to generate probable cause to arrest someone or search their belongings? And there, the court said, it's not sufficient to adopt a per se rule. Like the defendant has to be able to introduce evidence about, for example, like that this

dog makes a certain amount of errors or that the officer wasn't sufficiently trained because we require that contextual analysis for purposes of the Fourth Amendment. Right. And so there were a ton of really interesting hypotheticals and questions. And one of the aspects we wanted to point to was something that Justice Gorsuch said about basically asking Sarah Harrington, who is representing Mr. Glover, what exactly are you looking for here? What should the officer have said? interests me, that it's a minimal burden that you would impose on the state. And it does seem like in many of the cases on which the government relies, there's an officer who comes in and says, well, in my experience, owners drive their cars. And if that's all that is at issue here, is that Kansas forgot, neglected to put an officer on the stand to say,

in my experience, the driver is usually the owner of the car, or often is. What are we fighting about here? And is this what's really at stake? It seems to me that it's almost a formalism you're asking for this court to endorse. So part of what's interesting about this question, at least for me, Jamie, is that Justice Gorsuch is, I think, usually identified as somewhat of a formalist. That is, you know, he's both a formalist with respect to methods of interpretation and is also somewhat of a rule formalist and that he likes bright line rules. And, you know, to my mind, it was a little bit odd to hear him expressing skepticism about, well, what good is this formalist rule? You know, if we're just going to require the officer to kind of make these additional statements, like, is that good for anything? Right. And we got that from Justice Gorsuch and Justice Alito. So basically saying, you know, do officers just have to, you know, make this incantation, just say the words in my experience and under my training and that's enough?

Because if so, this seems like kind of a useless rule. But I kind of thought they were missing two things in that line of questions. So the first thing is that the officer, first of all, has to be able to say that honestly, right? Like that – we can't just assume an officer will say something and assume it will also be true. Because assume what makes an ass out of you and me. Exactly. And then the officer will also be subject to cross-examination and have those assertions tested. So if an officer says, you know, in my experience, people who have suspended license always drive their car.

And then if defense counsel said, well, how many times has that happened? And he says, well, actually, it's never happened. I mean, that would, you know, maybe impeach his testimony. And the other thing that I thought was missing is that the fact that you have suspicion doesn't mean it's necessarily reasonable. So reasonable suspicion has two components. And whether an officer's suspicion is reasonable is something that will be tested by the trial judge and the adversarial system. So I was also surprised about this kind of formalist take on it on what we would usually think is a really important part of our Fourth Amendment doctrine.

Yeah. And so in addition to the suspicion being reasonable, we also say it has to be particularized. It has to be particularized to that individual. And generally, you know, these kind of rote generalized statistics aren't sufficient to establish particularized suspicion as to any one individual. So Justice Kagan, for example, posited this hypothetical whereby, you know, a given municipality had a study that showed 50% of teenagers don't carry their driver's license with them. If you had that study, would it therefore be reasonable to pull over every single teenager you see driving, even though you don't know if any particular teenager lacks their driver's license? And generally, we don't

think that's sufficient for purposes of reasonable suspicion because it's not particularized. And so the question is, like, is it any different here? Right. And one thing that Sarah Harrington pointed out is that this is going to vary not just by individual, but by community. And so, for example, somebody who loses her license in Manhattan or in D.C., where I live, is probably going to be much less likely to drive on an expired license than a single mom in rural North Dakota, which doesn't have any meaningful public transit. And so that's another reason why this isn't just a formalism. It actually is going to vary, or at least there's nothing that suggests that it wouldn't vary. And usually we look at these things on a more, you know, on a kind of more one-off basis than create bright line rules. Yes. And Sarah Harrington really did a fantastic job on this argument, just in a few different

levels. So one thing I wanted to flag from this argument that I thought she did really well is the chief justice asked her a question that was premised on the suggestion that, well, isn't it reasonable to assume that a driver whose license has been revoked is breaking the law because they've already broke one law? And she kind of gently corrected him in a way that I thought was really substantively excellent and also polite. We know somebody's already broken the law. In some sense, he's got a suspended license. I think it's probably more likely than not that he would break the law saying you can't drive with a suspended license. So first, you know, the facts on the ground suggest that we don't know that

because in many states, it's the inability to pay fines that results in a suspended license, not criminal activities. But second, this court has never, ever held or come close to holding that evidence that you committed X crime is enough for us. And another thing she did really well is, you know, it can be very difficult and often not advised to kind of pose questions back to the justices because then you'll get the response, you know, excuse me, counsel, we're the ones asking the questions. But in a case like this, where the way the question is framed will have a big impact on what your answer is, it can sometimes be helpful to ask clarifying questions. And Sarah was able to do this actually repeatedly with the chief justice without really ruffling any feathers.

And here's an example of that. You're asking if I think that's enough for reasonable suspicion? No, I'm asking you if you think that, whether it's reasonable suspicion or not, do you think it is at least a 5% chance? That the owner is driving. That the owner of the car is driving the car. So I think one theme we might be returning to on this episode is all of the things you might be able to get away with a little bit more if you are a member of the Supreme Court bar. And Sarah is obviously a very experienced and accomplished Supreme Court advocate. And here, I think that really redounded to her benefit. You know, she was on the substance completely excellent. But I think that she was able to do this, you know, not just because it was executed well, but also because she has some additional purchase

with the justices. Yeah. And I know that we are often critical about the kind of clubby nature of the Supreme Court bar. And I certainly am critical of that. But there are reasons to think that some, I mean, this doesn't mean that every single case has to be argued by the same, you know, three men, but there are good reasons to think that experience and kind of clout and respect from the justices can be very useful and can drive the conversation in a constructive direction. Yes. And then there was one other thing we wanted to highlight from her argument, which is she also managed a rare feat for a Supreme Court advocate, which was to actually get a joke in and that the joke was partially at the expense of one of the justices.

Then why shouldn't we read the declaration here as effectively saying that? That I assume, I'm an officer. This is what I do. Right. I assume this is the driver. This is the owner, okay? Touche. Yes, this was a very funny part.

And I will say that when I was sitting in the courtroom, because I was there at the argument, and Justice Gorsuch kind of like went into character in playing this New York cop, which I thought was a little odd and like maybe mildly offensive. Was this his Justice Blackmun moment? You know how Kate and Melissa talked last episode about Justice Blackmun writing these notes about Justice Scalia as an advocate. And Justice Gorsuch is just taking on this super weird New York accent. It was really strange.

Yeah, I was a little worried at first that I was like, is he trying to do an Italian accent? And then Sarah said, oh, this is Kansas, not New York. Then I remembered, wait a minute, that's probably a New York accent. But anyway, it was an interesting part of argument. And there were a lot of kind of puzzled looks around, but Sarah dealt with it really well. Yeah. Part of me wonders if another acceptable rejoinder would have been, I guess we're not in Kansas anymore, Dorothy. That might have been too far. That might have been too far.

Yeah. I think that would have been too far. Just a thought there. Yes. And I will say, ultimately, I'm not super optimistic about Mr. Glover's chances in this case. I think that to me it just felt like the justices wanted to create this bright line rule based on what their common sense told them about who drives and when and why and the idea that reasonable suspicion is a super low bar. So that's kind of my take on it after argument. But I certainly think that at least the adversarial system worked well here and the arguments were made as best as they could in both directions. That's something. And now we will go on to the moment of Jamie's dreams. We'll just wait until we talk about Thol together later this term, but this is a nice little taste. So the case we are now going to discuss is IBM versus Jander. And it involves

Jamie's favorite statute in the entire world, ERISA. Yes. And I will say that we, I don't think originally we're going to talk about this case today, but it ended up being a really interesting argument and it incorporates some parts of the kind of court culture aspects that we talk about. So we thought we'd briefly discuss it. I should say that was Jamie's assessment and I just kindly went along. I appreciate it. You know, I have, I have, I've been making these, you know, you, you've been talking about a lot of ACA, a lot of habeas and I'm cashing in just a little bit right now. Indeed.

Let me explain a little bit of just a tiny bit of background, which will let us get to the point we want to talk about later, which is what happens when an advocate makes one argument at the cert stage but a different argument at the merit stage. So this case, IBM versus Jander, is about – it's a stock drop case. And what that means is that when a company offers its stock in its retirement plan, which it's allowed to do under ERISA and which Congress actually encouraged employers to do, and then the stock price drops, plan participants will sometimes sue plan fiduciaries claiming that they should have basically cut off investment to company stock or they should have disclosed insider information to prevent plan participants from experiencing any losses. And this is... So just so we're clear, like the plan participants are the employees here who, you know, by virtue of their employment benefits, have shares in company stock. And the plan fiduciary is the person who is administering that retirement plan and company stock and the plan fiduciary is the person who is administering that retirement

plan and company stock. Yeah. And usually there's a committee of plan fiduciaries who are often people who are corporate officers who have a lot of knowledge about the company and investments and things like that. The QP in this case was effectively, did the Second Circuit misapply Dudenhofer? It was whether these types of allegations are sufficient to state misapply Dudenhofer? It was whether these types of allegations are sufficient to state a claim under Dudenhofer,

which is usually not a super cert-worthy sending QP, but that's what the court granted cert to decide. And then the merit stage briefing happened. Yes. And the merit stage briefing happened. And so you had Paul Clement representing IBM and you had the government also filing a brief. And they took two positions that weren't briefed in the lower courts and that weren't ventilated in the cert petition at all. So IBM's position

was that with basically no realistic exception, stock drop complaints can only be decided under securities laws. Basically, there is no ERISA claim following a stock drop. can only be decided under securities laws. Basically, there is no ERISA claim following a stock drop. Full stop. Securities law is your only remedy. And the government's position was that it was a very different position. It was ERISA liability will be basically coextensive with securities liability. That if under the securities laws, corporate executives or the company would be required to disclose information to the public, then you could also state an ERISA claim for having failed to disclose insider information to plaint participants.

And so none of this stuff was in the cert petition. Right. And so instead of arguing whether the facts were in the claim sufficient to withstand the pleading standard under ERISA and how Dunhofer interpreted ERISA, the question was, like, can you make this kind of claim under ERISA at all to the extent it's separate from securities law? And some of the justices were not happy about this change from the cert stage briefing to the merit stage. Yes. And so we have a couple clips that we want to share with you. The first one is from Justice Sotomayor. Not what you asked for certain. You have, I read the question, whether the more harm than good pleading consideration from Fifth Third Bancroft can be satisfied by generalized allegations that the harm of an inevitable discovery of an alleged fraud generally increases over time. Justice Ginsburg was also not pleased. May I ask you a question about this theory of yours?

I saw it nowhere aired below. And then you come in with a brief, and you seem not to focus on the more harm than good standard, but you say that an insider has a duty to disclose non-public information under the Securities Act. So we're going to use the Securities Act. But I didn't see that in the district court or the Court of Appeals. And not to be left out, Justice Breyer also wanted to voice some concern. Your argument now and the government and most of the briefs here seem, as Justice Sotomayor pointed out, to be addressing a different issue than what we granted cert on.

He has a really bad sense of FOMO, so he had to get in on this too. Yes. So basically, the justices felt like there had been a bait and switch. They granted cert to answer a very specific question, probably to reverse since this case was kind of out of line with all of the other circuits. And instead, it seemed like IBM maybe got a little greedy and wanted more than just the kind of reversal that they had sought. And instead, they wanted this huge bright line rule that would basically say there's no ERISA claim at all. So I've seen this before.

Usually, it doesn't go super well. Often, it can result in what we call a dig, the court dismissing a case as improvidently granted. So why do you think, Leah, that parties do this sometimes in the Supreme Court? I mean, a variety of different reasons. One is just over the course of having the case longer and thinking about it more, you might think that you came up with a better argument than you did at the cert stage. Another is the incentives are a little bit different at the cert stage process than the

merits process. So cert stage, you kind of want to tell the court, like, here's this interesting legal question that you can potentially resolve. You know, maybe different courts disagree on it and whatnot. Whereas at the merit stage, like, you're just looking for a win. And so that might create an incentive to make a different argument than it would at the cert stage. Sometimes when you've got this, you know, case that's, there's kind of binding precedent from the court from before, but the parties in that case didn't make arguments that would have been a kind of precedent, like a proceeding issue. So in Dudenhofer, the only question was, what would be the pleading standard for this claim? No one ever even asked what's a kind of proceeding issue is,

should this be a claim at all? And so problem is that what Justice Breyer had said is, listen, I don't know what the lower courts think about this, but for a party actually litigating in real time in the district court with page limits, you can't really say, well, court, you should dismiss this case because there's no claim under ERISA, because the district court's going to say, what are you talking about? The Supreme Court has already created a pleading standard, and then you'll lose a lot of credibility in the lower courts if you waste your page space making those kinds of arguments. Yeah, that's true. Although sometimes you can make them and just know you're preserving them for the possibility of later on. I think, you know,

you noted that sometimes when parties do this, the Supreme Court will dismiss the case. There was one recent case in which they did so, Visa versus Osborne, through an order that actually explicitly noted that they were dismissing it because the party sought cert on one issue, but then changed their arguments from the cert stage to the merit stage. And that case involved another kind of repeat SCOTUS player, Neil Katyal, at Hogan levels. So this might be another one of those things where sometimes Supreme Court advocates have a little bit more purchase to get away with these things, but not complete license to do so. Yeah. So I'll be interested to see what happens. And don't worry, listeners, we will keep you posted on all of the

ERISA developments for the term. Yes, we will. I just have to note that during my term, at the end of the year, the Supreme Court clerks put on a skit for all the justices and the court employees. And it's this horrible tradition because we have to write it and we're not very funny. And it's also a musical. And so we did a song my year to the tune of Jesus Christ Superstar. And it was, as I'm sure you can guess, given the case we were discussing and the litigants we were just discussing, Paul Clement, superstar. Oh, what a wonderful advocate you are. And anyways, so that's my side note about Jander. I also heard that during those skits, at least when Justice Scalia was alive, it was really stressful because the chief does not like it when you make fun of the justices. And he would get very upset if you do that. But Justice Scalia would get really mad at

his clerks if they are too reverent and if they don't make fun of the justices. So it was a real rock and hard place for the Scalia clerks, I've heard. I will neither confirm nor deny that. But I will suggest that that dynamic did not just involve Justice Scalia and the chief, but perhaps some other justices as well. I feel like I might, I can maybe imagine which justices those might be and not be. All right. So I think we should move on to another super exciting case, maybe even more exciting than Arisa, which was Hernandez versus Mesa. And Leah, you should probably do a disclaimer first. Yes.

So I was one of the lawyers on the briefs for this case for the Hernandez family. So I'm involved in the case on the briefs as well. And this is not the first time this case has been up to the Supreme Court, is that right? No, it's the second time. So I should probably briefly explain what the case is about before I say what the kind of question is. So the case involves a tragic cross-border shooting where a Customs and Border Patrol officer who was standing on the United States side of the Texas-Mexico border shot and killed a 15-year-old Mexican national who at the time of his death was standing on the Mexican side of the border. And so the child's family brought suit against the officer, arguing that the officer shooting

violated the Fourth and Fifth Amendment of the U.S. Constitution. And so the question that this case presents is whether there is a remedy under the Constitution in what's known as a, quote, Bivens action for this type of rogue law enforcement action. And a Bivens action just refers to a suit for damages against federal officers that isn't specifically authorized by a statute, but rather is implied by the justices. The last time the case was at the Supreme Court, the court held that the CBP officer was not entitled to qualified immunity on the ground that he, you know, didn't know at the time that the 15-year-old child was on the Mexican side of the border.

And so in other contexts, there will be, there may be state or federal statutes that would allow a private right of action. So this Bivens remedy, that's a case from decades and decades ago, right? Yes, 1970s. Okay, so when was the last time a Bivens remedy, that's a case from decades and decades ago, right? Yes, 1970s. Okay, so when was the last time a Bivens remedy was recognized? Not so recent. So after the Supreme Court decided Bivens, it recognized Bivens' right of actions in two cases. And then since those two cases, the Supreme Court has not recognized any other Bivens action. And so part of our argument in this case is not recognized any other Bivens action. And so part of our

argument in this case is that this case is Bivens. Bivens was also an action against a federal law enforcement officer where the claim was excessive force in violation of the Fourth Amendment. And one thing we were saying and that most of the parties and the justices agreed is that if Sergio Hernandez, who is a 15-year-old Mexican national who was shot, if he was shot while standing on the United States side of the border, then there would be a Bivens action because that perfectly fits the type of Bivens action that the court said was available in Bivens. You're suing a federal law enforcement officer engaged in policing for rogue law enforcement activities for excessive force. And that's the classic type of case where if you don't have a Bivens remedy, you don't have any remedy at all. So one thing I found interesting about that is, in the briefing and certainly with the counsel for Agent Mesa, it seemed like everyone had agreed that if Mr. Hernandez had been three inches inside the border, there would

have been a Bivens remedy. This is actually something that I think the government switched positions on. So I looked back at the Hernandez versus Mesa transcript from the last time around, and Ed Needler, who was representing the government, said expressly, he conceded that if the boy was standing on the U.S. side of the border, there would have been a Bivens remedy. This time around, Jeff Wall was arguing for the government. And Jeff Wall said, well, no, we're not going to concede that. It might not, there might not be a claim there either. It seemed like that wouldn't have mattered as much because, you know, the Respondents Council had already conceded it. But I found that an interesting

switch in position, even within the same administration. Yeah, it's not clear what happened there. And Jeff Wall, who was arguing on behalf of the Solicitor General, only made that concession in like the last 30 seconds of his argument. So at that point, you know, the entire case had been argued and the justices and, you know, the entire case had been argued and the justices and, you know, the case brief kind of based on this premise that Bivens would be available if the child was standing on the United States side of the border. You know, but then all of a sudden, in the last 30 seconds of the argument, the SG announces, you know, maybe that's no longer the case. I think I think it's maybe helpful for our listeners to explain like why that's potentially relevant or how the law kind of takes that into account. So basically

what the Supreme Court has said about Bivens is if you are seeking a Bivens suit in a new context, the Supreme Court will not allow you to do so if there are what are called special factors, counseling hesitation. And so here the government was what are called special factors counseling hesitation. And so here the government was arguing that the special factors of national security, foreign policy counsel against hesitation. But the issue was, well, if you can see that there would be a Bivens action if Sergio Hernandez was standing on the United States side of the border, well, there are going to be some foreign policy implications there, given that a federal officer has shot a Mexican national. And, you know, there are the same, quote, national security concerns, given that the case also involves a Customs and Border Patrol officer who is policing the border.

And I mean, and those same concerns would exist even if it were someone who was mistreated in Colorado, right? All of those same concerns about the way foreign nationals are treated in the United States would be implicated. Yes, exactly. Like even if it's a foreign national who's not near the border, or even if it's a U.S. citizen who's standing on the Mexican side of the border, you know, when the CBP officer shoots them, you know, that case will also involve the same, you know, national security concerns, given that it's a CBP officer who is engaged in, you know, border enforcement. Yeah. So one of the first justices to press on this point was Justice Cavanaugh. And so let's play a clip of him questioning Mr. Ortega. I thought your point was the foreign policy implications are triggered when it's on the other side of the border. And that's why we give significance to the border. But I want to press on that because wouldn't there be foreign policy implications even if the victim were a Mexican national and killed even on the U.S. side of the border?

Those kinds of incidents create lots of international and foreign policy implications as well. So why do foreign policy implications track the border so neatly in your view? They track the border because the border is a paramilitary area that the Border Patrol patrols under the guidance of the executive. But do you agree there could be serious foreign policy implications, even from an incident inside the United States with a victim who's a Mexican national? So I found that Mr. Ortega did not really have a satisfying answer to this. He just kind of kept repeating this would be a new context. And he also said that this would create chaos in the lower courts, which all of a sudden

wouldn't know how to apply Bivens anymore, to which Justice Kavanaugh said, what are you talking about? They would know to apply it in this situation and not in others. But that was kind of the only response. And then there was another exchange with Justice Breyer along similar lines. This is actually bothering me. I'm not asking you, but if we were talking about extending the Fourth Amendment, I would see a problem. I might think we should, or I might think we shouldn't, but I might think we should, but I certainly would say there is a problem. But once we say the Fourth Amendment is there, in just the same way it is two feet on the other side, at that point, what's the special problem of giving a damages remedy to a Mexican youth just as you would give it to an American youth, whether that American youth is over on

one side of the border or the other. At that point, I hesitate. I say, well, that's what we're supposed to find here under the statute. And what is it? Assuming Verdugo did not foreclose that, then there would not be a difference. I mean, so the end of this clip, I think, really says it all, right? Like, if there's no difference between a case where a Customs and Border Patrol officer shoots a Mexican national who is on the United States side of the border from a case where a CBP officer shoots a Mexican national on the Mexican side of the border,

that is, in Justice Breyer's words, the end of it. There is no special factor, counseling hesitation in one case but not the other. And if you think a Bivens action should be available when a federal officer uses excessive force, lethal force, and kills a foreign national in the United States, well, then you would think there would also be a Bivens action here when they're doing so in close proximity, doing kind of like ordinary border patrol work at the border. And I think this is one of the differences between Supreme Court arguments and lower court arguments, where really the tenor of the conversation is different. You can't just distinguish a certain situation from past cases. You have to explain why those

distinctions matter, why they're material, why the principle shouldn't apply in the new context. And if you don't have a satisfying answer to that, you're not going to be in good shape. So Jeff Wall, I think, made a little bit more headway on this front in explaining what the consequence, the national security and the foreign relations consequence would be for the government. One thing that I think is an important background issue is that after this shooting happened, there were negotiations and there are ongoing negotiations between Mexico and the United States. And there was an investigation that the United States conducted in which the government concluded that Agent Mesa did nothing wrong. And I understand that Mexico doesn't really agree with that and isn't super happy about it.

And so his response to the national security question was right here. Just, Kagan, you really think that the next time we go in to talk to Mexico and we take a position on something at the border, they won't say, how is your representation credible? You told us last time that your officer didn't do anything wrong and your own courts, potentially even your Supreme Court, told you were wrong. I think it does directly undermine the credibility of the executive branch in working with foreign government. I thought this was a pretty kind of brazen kind of formulation of the question. And I wasn't there in the courtroom, but you don't usually see that type of confrontational question being asked of a justice as opposed to kind of the clarifying question we talked about before. Yeah. So I was in the courtroom and I was really taken aback by this just for a few different reasons, you know, in part because of the tone that you kind of noted, but also because the

tone was being directed at Justice Kagan, who herself is a former solicitor general. And, you know, I guess I kind of noticed some members of the Supreme Court bar maybe adopting a kind of dismissive attitude toward Justice Sotomayor. And I think that that's really problematic. But I haven't really seen them do that to Justice Kagan. We certainly don't see this often, especially from members of the Solicitor General's office, that kind of like tone and confrontational attitude taken toward Justice Kagan. And I actually loved her response to this. She gave a kind of very firm reminder about how our system of divided government works. And here's what her response was. Why wouldn't the United States then say, you know,

we live in a country in which courts play an important role in determining whether conduct is lawful. And that's not an embarrassment to the United States or to the executive branch. You know, you mentioned you were on the case, Leah, actually arguing the case with Steve Vladek. And he, I thought, did a really fantastic job in making clear that he's not, you know, that you all weren't reaching, weren't seeking this wide ranging extension of Bivens. And he really, because I think there's always concerns in the Bivens context that if we recognize a remedy here, does this mean that anytime our soldiers do something they shouldn't do in a war zone, that there's going to be, you know, massive civil liability for these officers?

So what was the kind of very specific, narrow, kind of carved out area that you all were trying to draw? Well, so I think Steve set it up in the opening in the exact same way that the justices honed in on. Namely, everybody would agree that there's a Bivens action if there's a rogue law enforcement officer who uses excessive force and in the process of doing that, kills someone in the United States. The entire question is, does it make all the difference in the world that someone is standing

like a few inches over an invisible line that no one can see? And so that's the case that we're asking for a Bivens action in. You know, the classic Bivens case, the rogue law enforcement officer where you're not challenging a policy, you're not doing anything other than ordinary policing. It just happens to be at the border. And, you know, the officer uses force that we argue was in violation of department policy and also in violation of the Constitution. Right. And so here's a clip of, I think, Steve doing a good job of setting out that argument

pretty clearly and concisely. Mr. Chief Justice, may it please the court. When this case was first argued to this court two years ago, counsel for respondent and counsel for the United States were both asked whether petitioners would have a Bivens remedy if Sergio Hernandez had been standing on U.S. soil when he was shot and killed by respondent. Both said yes. The question before this court today is therefore whether a Bivens action is nevertheless foreclosed because in this case, Sergio was standing a few feet to the Mexican side of the border at the time he was shot. And I will say, I know that this is a really hard case.

And maybe, and I hope I'm not going to eat my words later, but I actually feel cautiously optimistic. I think that Justice Kavanaugh, there was some real headway that Steve made with Justice Kavanaugh. Don't look at me that way, Leah. I think that there was some headway made. I think that Justice Kavanaugh asked a lot of really difficult questions.

I thought I would hear more questions from Justice Gorsuch that was kind of critical of the government's position, and I didn't. And I don't think that Justice Kavanaugh was super satisfied with what he heard from the respondent. So I don't know that Justice Kavanaugh was super satisfied with what he heard from the

respondent. Um, so I don't know. I think, I think that there is a shot and this is such a narrow and egregious situation that it's, I don't think this would create a slippery slope issue, which is what others have kind of wanted to suggest. I agree with absolutely everything you said, Jamie. Excellent. All right. Okay. So next case, marching right along. The next case we wanted to cover is a super interesting environmental case, County of Maui versus Hawaii Wildlife Fund. Jamie, do you want to explain kind of the background slash question that the court was answering and asking in this case? Absolutely. So this case is about a waste treatment plant that was run by Maui County in Hawaii, obviously. And the treatment plant has these underground

wells that store treated water so that it can seep into the groundwater and then eventually reach the ocean. But what was happening is that there were pollutants that were found in the ocean that had originated in these wells. They could be traced back to the wells. And so a citizen suit was brought claiming that Maui County was polluting the ocean without complying with the Clean Water Act's point source permit requirement. And let me just briefly explain what that is because the Clean Water Act is massive. There's penalties. There's permits. There's a specific program called the Point Source Permit Program. And what the statute does is it makes it unlawful for someone to, without a permit, add a pollutant to navigable waters, which includes the ocean, from any point

source. And under the Clean Water Act, a point source is defined to expressly include wells. So basically, the question presented is whether the Clean Water Act requires a point source is defined to expressly include wells. So basically the question presented is whether the Clean Water Act requires a point source permit when pollutants travel from a point source through groundwater ultimately to navigable waters rather than from a point source through a pipe, which is another point source, to navigable waters. The two sides were offering, obviously, different positions, and the different positions each had implications that the justices seemed very uncomfortable with. So Maui County, who operated the plant, was arguing that any time water does not go directly from a point source

to navigable waters, then it's not covered by the Clean Water Act's point source permitting program. So under this interpretation, a pipe that runs through the ground into the ocean would require a permit. But if you took that same pipe and stopped it five inches back from the ocean so that the water went into the soil and then into the ocean, that it wouldn't require a permit at all. And the concern was, you know, that would create incentives for evasion from the permitting process. Right. And Justice Breyer actually said this would create a roadmap for evasion. And Maui County's response, and Maui County was, I thought, very ably represented by Albert Lin, who's the former Solicitor general of West Virginia.

But their response was basically don't worry about that because there's other state and local laws that would penalize doing so. And Justice Kagan and Justice Sotomayor both seemed very dissatisfied with this response for kind of two reasons. The first is that not every state is Hawaii. And there are going to be other states where there aren't protective environmental laws. And the whole point of the Clean Water Act, of the point program, was to ensure kind of national uniformity in addressing water pollutants getting dumped into the oceans and to the waters of the United States. And then the second thing they were worried about is that these state and local laws that Maui County had pointed to are generally not proactive in nature. They are, you know, the point source permit program is a proactive one.

It's not a remediation program. And most state and local laws are more remediation programs. Yeah, that is the state and local laws give you a remedy if there's been some pollution, whereas the permitting process is nominally designed to prevent that pollution from ever happening from requiring the permits and forcing people to go through the permitting process yes and so the petitioner had a theory that also wasn't super satisfying as you mentioned Leah so the petitioners and this was the Hawaii Wildlife Fund represented by David Hankin who incidentally I stood next to in the Supreme Court bar line when I went to Sarah's argument um days prior. So it was kind of fun. So the

petitioners argued that as long as pollutants that are in the ocean or in navigable waters are fairly traceable to a point source, then the point source permit program applies and someone can be held liable for failing to comply with it. The problem with this is that there was a slippery slope issue too. So there was a lot of talk about septic tanks. And basically under this theory, if there's someone on Martha's Vineyard who has a septic tank and that septic tank has some type of a leak and pollutants from the septic tank

reach the ocean through the groundwater, even after taking 30 years to get there, as long as they can be traced to it using reasonable science and technology, then the landowners could be subjected to these massive penalties for failing to comply with this incredibly complicated and expensive permitting system that they never knew they were required to comply with. And that would create a lot of

uncertainty and unfairness. Yeah, so that was, you know, one of the concerns with that theory. And then I think the Respondents Council, David Hankins, suggested you could limit the tests to just apply to when discharge is foreseeable. But the Chief Justice didn't seem comfortable with that limitation because he didn't think foreseeability or traceability was a clear test that would necessarily let people know whether they needed a permit or not. Yeah, he basically said, you know, foreseeability, that's the most malleable standard that I've ever heard of, which is unfortunate since it is basically the limitation that underlies our entire tort law system. But, you know, for situations like this,

when you're talking about advance notice and permit requirements, that was troubling to the chief. The EPA filed a brief in this case, which I thought was really interesting because it offered this, it was supposed to be kind of a middle ground, but I found it not particularly principled. So their argument was that if water travels from a point source on top of the ground, like down a hill, like it rolls down the hill to the ocean, then that has to be permitted. But if water travels from a point source and then say it goes on top of the ground and then like two inches before it reaches the ocean, it goes into the ground and it goes through groundwater, then into the ocean, that doesn't have to be permitted. And there was this one exchange with the chief where the chief said,

so really, if even only two inches? And counsel for the SG's office said, yep, two inches. And it was like, that can't be right. That seemed to be an unsatisfying distinction to many of the justices. Yeah. So one of the kind of implicit questions that the court seems to be deciding this case on is that groundwater itself is a non-point source. And then, you know, the issue in the case kind of comes down to what the meaning of the word from is in this statute because the statute requires a permit or rather prohibits without a permit adding a pollutant to navigable waters from any point source. Right. And, you know, both sides have kind of like plausible interpretations about what the word

from means. And then the question is kind of, well, what do you do then? Like, how do you determine what this means? Right. It doesn't say directly from. It doesn't say directly to. But there has to be some limit on it. There has to be some limit.

And, you know, one of the things that, you know, we used to do when there was this term in a statute that had potentially far-reaching implications and involved difficult line drawing issues is allow agencies to kind of make the call about what these terms meant. And here, the EPA actually has issued a regulation, you know, purporting to define what it means to add a pollutant to Navigable Waters from a point source. But no one is arguing that the agency is entitled to deference, you know, in part because deference to agencies has kind of fallen out of fashion. So it's almost like this idea or doctrine that dare not speak its name or shall not be named. It's kind of weird. Yeah, there was, I can't remember, it was this argument or another one from the last few weeks where I remember there was this exchange between the government and Justice Sotomayor and Justice

Sotomayor said something like, well, if we're not sure, you know, if it could go either way, you know, then what if our interpretation could go either way from the statutory text and you've got, you know, you've got your own interpretation. What are we supposed to do? And the government was basically like, you need to make a call on what the statute means, like expressly disclaiming, you know, deference under the Chevron case that is about deference to agency interpretations, which is so fascinating. And I suspect it's because later on, the government's going to want to ask for Chevron to be overturned, and they don't want to have pie in their face when they do it from other arguments they'd made all year. Yeah. And so instead, what the justices are left to do is basically try to find for themselves

some middle ground and limiting principle. And the argument really involved them kind of throwing out these different consequences and hypotheticals to figure out what that might be. Yes. And so when you have a situation where the justices are coming up with their own potential standards, it's always going to be Justice Breyer offering one first. So he decided he's going to come up with his own standard. And here's what usually happens. So he thinks back in his chambers and he's like, what would be a better standard that no one has argued yet? And then he posits it during the argument. And it's usually something that's not at all clear or obvious.

And then he'll ask one particular party what they think of it with absolutely no time to consider it ahead of time. And so that's what he did here. And here's a clip of him offering his own standard. It seems to me this case in my mind at the moment is, what's the standard for separating the sheep from the goats? And you're basically saying the Ninth Circuit's way too broad and so are they. So we come up with zero, okay, close to zero. Now, the best, I want to try out one thing, if you think — have any reaction to it. If it's regulated, bar under this, if it's the functional equivalent of a direct discharge.

Now, the reason that I put that is because that leaves a lot of room for the EPA to write regulations to decide what is the functional equivalent of a direct discharge. And it's narrower than Ninth Circuit. If you want to have a reaction to that, have it. So functional equivalent, which seems to be a somewhat, I would say, vague or ambiguous standard, much like foreseeability or fairly traceable. And I'll also note that, you know, the Clean Water Act has a whole list of things that are considered point sources, which means that all of the functional equivalents are probably set forth in the statute.

But there was this funny exchange with the chief who had not liked traceability or foreseeability, and he did not seem to really like Justice Breyer's, his posited standard either. I don't mean to be critical of the author of the phrase, but what does functional equivalent mean? What do you understand it to mean? I mean, what we're looking for as for an equivalent, it's an equivalent to a point source,

right? Right. Okay, I think of a pipe. Poor Justice Breyer. One thing he said in the argument later was, because he was kind of acknowledging, OK, I think of a pipe. Poor Justice Breyer. One thing he said in the argument later was because he was kind of acknowledging, well, it's not really fair that you're having to answer this on the fly. And he said something like, don't worry. We'll talk about this later. Like the chief and I will talk about this later in conference.

It's not up to you or something. It was it was an interesting, interesting exchange. I'm sure the chief wants to have many long extended discussions with Justice Breyer about what the functional equivalent of a point source, non-point source would be. Yes, yes, probably, probably. He probably just wants to grab lunch and not have those discussions. But so I don't know. I thought this was a super interesting argument. I honestly thought that the argument I thought the better of it went to the Hawaii Wildlife Fund. I don't think, you know, if I had to predict, I would say that the respondents will probably win.

You know, they'll have the victorious judgment. But the court's going to come up with some standard that it likes better than anything anyone has offered. Who knows? Maybe functional equivalent has a chance. So, yeah, a ton of really interesting, fun arguments. We're not going to get any decisions, I'm sure, for a while, though. If Justice Ginsburg is assigned to any, she usually will come out with a unanimous opinion within about a month.

So we could see something in November, and we'll keep you posted on that. Cert grants. There were a couple cert grants. Yes. So a few that we wanted to note, one was PTO versus booking.com about whether the phrase.com is trademarkable in the business's name there. Yes. So basically, if the word booking wouldn't be trademarkable, but booking.com would be able to. But it's typically looking at whether generic names followed by.com is enough to make it trademarkable.

And then the second case is Lew v. SEC, which is a question about whether the SEC can obtain disgorgement as a form of equitable relief. And that follows on some other recent securities cases in which the court has looked at the type of relief that's being sought and whether it's equitable or legal, which also implicates ERISA cases. So just have to flag that there. Not everything is about ERISA, Jamie. It's all about ERISA. And then some petitions that are now before the court that have not yet been granted that we also wanted to flag for our listeners because the cases are probably of substantial general interest. So the president's personal lawyers yesterday filed a petition for certiorari to review the Second Circuit Court of Appeals determination that the New York County prosecutor could subpoena a third-party firm that has the president's be implicated or might be a witness during the course of his office.

And both the district court and the Second Circuit rejected that. And the president's personal attorney filed the petition for cert on that question yesterday. And one thing that's interesting, we talked about differences between the way a question is framed at the cert stage and merit stage. We'll also see differences between the way something's framed in the Court of Appeals and at the merit stage. So in the Second Circuit case, the Second Circuit was very clear and said, our decision is super cabined. It applies only to questions about seeking information from a third party. So the president doesn't have to do anything. We're not subjecting him to anything. It's only about this

third party issue. And the cert petition, the QP is something along the lines of like, whether consistent with Article Two of the Constitution, the president can be subjected to compulsory criminal process, which is what the Second Circuit said we're not deciding. So that will be interesting. I feel like the opposition kind of writes itself there. Yeah. And also, you know, one of the ways in which the Second Circuit decision was more limited is not only are they seeking information from a third party, but also there's no claim of executive privilege over the information. And so while that petition was filed, there's another petition that is likely to be filed soon. If not today, maybe.

Yeah, if not today and before this episode will be released. And that is the petition regarding the enforcement of a congressional subpoena also to a third-party accounting firm that handles the president's finances and has his personal financial records. And that case is arising out of the D.C. Circuit. And recently the full D.C. Circuit voted to leave in place the panel decision that had upheld the congressional subpoena over a dissent by Judge Rao. Judge Rao. And two other judges on the D.C. Circuit joined dissent from the full court's decision not to rehear the case. I actually think that probably the D.C. Circuit's decision is the more likely to be cert worthy one because I think the court is more interested probably in talking about what Congress is allowed to do than what state courts are allowed to do. And I suspect that the arguments are a little less outlandish than, I mean, in the Second Circuit case, the president's personal lawyer said during argument, he was asked, so if the president literally stood in the middle of Fifth Avenue and shot someone,

you're saying that it couldn't be investigated. And the president's lawyer said, yes. So I think that maybe with less outlandish arguments, the D.C. Circuit's case might be more palatable to the justices. I think that that's true. But I also want to suggest that like the implications of the president's position in that case are equally stunning, right? Like the argument there is that Congress can't investigate whether the president violated the law. And given that Congress is the only body that can impeach and remove the president, it is rather stunning that they can engage in no investigations about whether the president violated the law. And like they are also arguing that Congress can't pass any laws like potentially regulating

the president's conduct. So I agree that the separation of powers concerns are going to be more interesting and potentially appealing to some of the justices on the court. But I think that the merits of the argument are also a bit of a stinker. Yeah, that's true. One of the petitions is now before the court. The other is likely to be soon, and it's likely that the court will determine whether to grant the petitions

by the mid-January conference, in which case the cases would be heard this term. So we could see a resolution of these issues by summer of 2020. Yes. Okay, so let's kind of close it out with a couple of culture segments. The first is that at one of the arguments this week, Justice Ginsburg was not present. And I think the court came out and said that she had either a cold or the flu or something. And first of all, Justice Thomas, I'm looking at you because you had the flu a few weeks ago. And I just wanted to know if you were maybe not using shame to were the Ginsburg clerks, who we specifically tasked with using hand sanitizers and other measures to ensure that the justice was kept in perfect health. Yeah. And honestly, I think that you need to really be relying on herd immunity

here. So every morning you need to be taking your vitamin C. You need to do everything humanly possible to keep the justice healthy and safe. Yes. Step it up, clerks. Step it up. Exactly. There was one other really interesting article that came out this week. Do you want to talk about that, Leah? Yeah. So we won't have the time to discuss it in depth, but Margaret Talbot at The New Yorker wrote an in-depth profile on Justice Kagan that included quotes from our co-hosts, Melissa Murray and Kate Shaw. But that's of the court and who we've kind of talked about doesn't have the same profile as some of the other justices, but is definitely worth learning about and getting to know more. So we'd encourage our listeners to check out Margaret Talbot's article in The New Yorker about Justice Kagan. That's about all the time we have.

So thank you so much to our listeners for listening. Thank you to our wonderful producer, Melody Rowell. Thank you to Eddie Cooper for our music. Um, and to our listeners, we have an exciting announcement. So we've decided to launch a membership program for the show where you have the chance to support the show directly. We love creating the show and it means so much to us that you all tune in to keep hearing us week after week. But it takes a lot of time and energy to produce and we want to keep the show going and to invest in its growth. And we'd love for you to be

partners in that journey. So that's why we launched and we're excited to give you a chance to become a supporter of the show at glow.fm backslash strict scrutiny or you can click the link on our website it's quick and easy it'll take less than 30 seconds and it just takes clicking a link um and using apple or google pay again the url is glow.fm backslash strict scrutiny, or you can click the donate link on our website. You don't have to create any new logins and you can contribute as much or as little as you like. But if this show is a part of your day or your week and you like what we're doing, please visit glow.fm backslash strict scrutiny and support us. In closing, I like a good movie night. How about you, Leah?

I also like a good movie night, Jamie. You know who else likes good movie nights? Justice Breyer. A wonderful money-raising thing. What the state decides to do with its own website charging $5 or something is to run Rocky, Mrs. Marvel, whatever, Spider-Man, and perhaps Groundhog Day. All right?

Was this his OK Boomer moment, though? Oh, no OK Boomer. No OK Boomer. We can't bring that to the court. In only the most affectionate way. I would love to watch a movie with Justice Breyer. And in my district court clerkship, we got to watch a movie with my judge. And I would adore watching one with the justice.

He hosted a movie night when I was clerking at the court. Please tell me you watched Groundhog Day. I think it was actually a French film. Maybe even more on brand. But it was delightful. Well, that's all we have time for today. Thanks again. And we will see you next time.