Strict Scrutiny - This Maximalist Conservative Supermajority

Episode Date: June 27, 2022

The pace of opinion releases has accelerated considerably as we speed toward the end of June and the justices' vacations. Even though last week brought us blockbuster cases about guns and abortions, there are still lots of consequential opinions getting overlooked. Leah, Kate, and Melissa break them down-- after a few more thoughts about Dobbs [5:32]. Plus, Melissa gets to finally flex her British Royals Brain in the court culture segment [1:05:28].Opinions discussed:Marietta Memorial Hospital v. Davita [20:23]A case about a Medicare statute and end-stage renal diseaseUS v. Taylor [25:24]A habeas with a positive outcome!Carson v. Makin [43:41]In which the Supreme Court embiggens free exercise rightsShoop v. Twyford [1:00:28]If you’re seeking relief, the answer is “no” & the only question is "why"Berger v. NC State Conference of NAACP [1:01:56]Involves a challenge to North Carolina's voter ID lawBecerra v. Empire Health [1:02:52]Related to Medicare reimbursement rates, with a really weird 5-4 line-upTwo more things:If you missed our episode "What's next in a post-Roe world," you should definitely go back and listen to get a sense of the fight ahead.You’re angry. We’re angry. Let’s do something about it. From directly supporting patients who need abortions right now, to electing pro-choice candidates in 2022 and building a progressive majority over the long term, you can find everything you need to fight back in our Fuck Bans Action Plan hub at votesaveamerica.com/roe. Follow us on Instagram, Twitter, Threads, and Bluesky

I'm devastated and terrified and so many women and so many girls are going to die because of this and I wanted to dedicate this next song to the five members of the Supreme Court who have showed us that at the end of the day they truly don't give a shit about freedom This song goes out to the justices Samuel Alito Clarence Thomas We hate you. We hate you. 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 and vibes that surround it. We're your hosts for today. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. Now, this is another very dense episode, and it also feels a little surreal to be

here in the wake of Dobbs, because it's hard to think or talk about anything other than Dobbs in the end of Roe and constitutional protections in America. And constitutional law, right, to the extent that ever existed. The end of constitutional law. It does feel like that. But. Rest in peace, my syllabus. Right. Exactly.

Exactly. Right. We do have to return to teaching what used to be known as constitutional law next school year. But before we get there, we have a lot of other cases to cover. And the court isn't even done yet. But just other than Dobbs and Bruin in the last week, the court actually has been very busy. It almost seems like it has lit a fire under itself. So it is issuing opinions left, right, and center. Mostly right. Basically all right.

Mostly right. That is correct. But the point is that the pace has accelerated considerably as we race to the end of June and the justices' vacations because really that's the most important thing. But I actually do think there's a good chance that they will finish the term this week, which did not look likely even a week ago. And I am sure they want to get the hell away from each other. So I suspect they are doing everything possible to get the opinions out and flee to far corners of the earth. That feeling when you work in a toxic workplace.

Exactly. Exactly. There really is a lot going on at One First Street. Not only is the court issuing decisions at a breakneck speed and trying to make Dred Scott great again in the process, but we are, or at least I am, still just on edge. I don't know if that's the right word, but just feeling off after we got the opinion in Dobbs. I mean, on Thursday in Bruin, the New York guns case, they were citing Dred Scott as a basis to invalidate gun restrictions. And then on Friday, they're citing Brown as a basis to overrule Roe and take away rights to bodily autonomy. Like, it's just so woke, Leah, like this is the court for racial justice. This is a racial justice court. Yeah, decisions really really illustrate that, I think. It's pretty clear.

CRT SCOTUS. Super woke. CRT SCOTUS. But, you know, these huge decisions that we got as like a one-two punch also means that a lot of really important decisions are getting overlooked in the discussion around the court. And that's unfortunate. You know, these decisions aren't as high profile as abortion and guns, nor are they as consequential. But they still are consequential. And they make clear just how maximalist this 6-3 conservative supermajority really is. And we did want to cover them. But before we do so. I actually think some of these decisions are as consequential as abortion and guns. I do. I think Carson versus Macon is very consequential. Oh, I think that's very consequential. But just like seeing the reports about what is emerging like within 24 hours of

Dobbs, I think it's just hard to even come close to, you know, how impactful that decision is. I mean, if you're going to like, if there's gonna be a hierarchy then yes dobbs has the most has had the most immediate impact but that's all i think just in terms of our like you know you know me i'm thinking about the long game here and i think carson versus macon really is part of this long game and i'm surprised that more mainstream media isn't covering it it is part of the transition from the supreme court of the united States to the Supreme Court of Gilead. So, you know, that is under his eye. Exactly. But before we actually covered the decisions that we really do want and intend to cover, did have some additions to our coverage of the opinion in Dobbs. Because while, you know, we were all able to read

the opinions before we recorded the episode, we recorded that episode within hours of the opinions release. And since that time, we've had additional time and space to read the opinions again and process them. And there were two passages from the joint dissent in particular that I wanted to highlight. One sounds a theme that we talked about on our emergency episode about Dobbs, which is whether we should be concerned about where this court is going next. So the joint dissent writes, faced with all of these connections between Roe and Casey and judicial decisions I think this is as pointed away for the joint dissenters to tell us to worry, right, as they can do, you know, likening this to the collapse of Jenga Tower, right, to the collapse of constitutional law, saying, like, there are reasons to be concerned about what comes next.

Also, this is so clearly Justice Kagan. Like, I hear you, Elena, right? You, I got this. The second passage I wanted to highlight, I think, was maybe written by another justice, and that was as follows. Closing our eyes to the suffering today's decision will impose will not make that suffering disappear. Again, all rank speculation. If I had to guess, I think that's Justice Sotomayor, right? It's like so much in keeping with the tenor of her dissents from Whole Woman's Health

v. Jackson, the Texas SB-8 case, and others. And, you know, along those lines, as, you know, Melissa and I were just talking about, the consequences of the Dobbs decision are already being felt. Texas clinics stopped performing abortions, the limited set of abortions they had been able to perform under Texas SBA. The only abortion clinic in West Virginia stopped performing abortions. The clinic staff spent Friday canceling appointments of 60, 70 patients and reports were patients broke down, couldn't speak through the sobbing, they were stunned, they didn't know what to say. Several other states put their trigger laws into effect, including Arkansas. Injunctions against very restrictive abortion bans like heartbeat bills were lifted in Ohio and Alabama,

allowing those laws to go into effect. Some places here in Michigan have stopped providing abortions because here in Michigan, there is a criminal abortion ban that completely bans abortion on the books that had been halted in light of Roe. It's a zombie law. Right. It's a zombie law. It is coming back. Now, there is an injunction in place, a trial court enjoined the law, but that's not the final say. And so some providers have opted to refuse to continue performing abortions. Yeah. So in terms of immediate impact, right, so we are now less than 24 hours after the decision was issued. And by my count, it's at least seven states that have completely or in large part already stopped providing abortion

care. So incredibly widespread immediate consequences. So I'm actually not surprised by any of those developments. I mean, they've telegraphed that that's what they would do. What did surprise me about this opinion, and I think it took a minute for it to sink in for me, it was just there are very few women's voices that are explicit in any of these opinions. And I know Kate, you mentioned that the dissenters wrote together, and there's no sort of principal author. They all joined this, and there's power in that kind of vocalism. But I wonder if that power is kind of muted when there are only three of you. And on an issue like this, where I think it would have been

really powerful on its own for Justices Sotomayor and Kagan to write this dissent, to be named as the authors of this dissent, and then to have Justice Breyer as his swan song, just join them as opposed to being a named member of the trio. So it would be captioned as the two authors as Kagan and Suchamore and then Breyer. That would have been more powerful. Yeah. I mean, I understood, as I've also thought a little bit more about it, in light of the substantive critique of the dissent, that it's really just about, you know, the proclivities

and individuals in the majority that have changed, that that is the reason that we are getting the opinion we are getting in Dobbs, that I can see them wanting to depersonalize the dissent, right, to say it is not about like the individual views of justices, because all of this should be about like higher principles and values. And so I understand the approach from that place. But what you're suggesting wouldn't be like, oh, there would be three separate dissents each under the name of one of the justices, but something sort of distinct. And I think that would have been a really good approach. As it stands, there is not one woman's solo voice here, which is bonkers. I still do wonder whether Barrett had the opportunity, like was offered the opinion and turned it down.

You got this. Jungle book it, Sam. I'll just join. Jungle book it. That's a reference to Kate McKinnon's delightful skit. If you have not seen it, look up Kate McKinnon's impersonation of Justice Barrett after the draft opinion leaked, and you won't regret it. Leroy Jenkins.

But not here, right? She's silent. She's just unbelievably important, pivotal vote player. All we can see is her unmistakable touch on the Lady Safehaven discussion in the opinion. It's a light touch. Yeah, yeah. But that's it. One other thing actually sort of in a similar vein just because I also in the 24 hours since we recorded have thought and read.

We mentioned how largely unchanged the Alito final opinion was from the draft opinion that we all saw at the beginning of May. I don't think I appreciate it because I hadn't seen a red line, that it is basically verbatim the same opinion. And that is like, that's a move just to be like, everyone has read this opinion, tons of criticism. Editing is for suckers. Revisions are for suckers. Also, like it really does give lie to this conceit about how the justices listen to counter arguments and how dissents improve opinions. And Sam is like, yeah, whatever. Right. Like, now he does respond, right, both to the dissent and to the concurrences. But that's essentially in a nasty, ad hominem way. And just by reiterating his arguments, but yes, he did add those responsive passages. But not to like any of, you know, the

other identified shortcomings in the opinion. And one that was particularly conspicuous that we didn't mention in our emergency episode was that... Because it was a shameful event for me. Well, there's no shame on you. The shame is on Alito. But basically, he retains the citation to the excellent brief that Melissa filed along with Reva Siegel and Serena Mayeri, basically articulating the equal protection grounding for the abortion right, which is distinct from the grounding of the right in both Roe and in Casey, although there is more of it in Casey than in Roe. And it's a great brief, which we have mentioned previously. And so the site stays in, but the thinness of the rejection of the argument is not changed from the original draft. So there's a citation to the brief. And then Alito just basically says, the sex equality argument is foreclosed by our precedents and cites only geduldig, which we've talked about

previously. And it's just like, in an opinion that takes a hatchet to precedent, the way this opinion does, to say with a straight face, we decline to consider this other argument because it is foreclosed by precedent. I mean, aside to an extremely – Because you can't legitimately write in an opinion, this argument is squarely foreclosed by the fact that the people writing it have vaginas. You can't say that. I mean, this is what I mean by the end of constitutional law. This is literally like that feeling when you're cited in a Supreme Court opinion, but by someone you hate. It's complicated. But I mean, and then again, there's one short, extremely unsatisfying paragraph.

And he says, Alito says, with this new theory addressed, we turn to Casey. And I mean, like, that's it. But he never addressed anything. No law, just vibes. Nailed it. So he cited your brief. And do you add that to your CV, Melissa? I mean, I actually, I don't know that I will add this to my CV.

I mean, like, literally, I'm just sort of like, I feel some kind of way about it. Yeah, Shadow does too. I don't know if you can hear her, but she's got a position on this. Add it, add it. And Shadow, I mean, Shadow doesn't even have a uterus and she is not happy with this i was looking at my dog this morning and she was just like peacefully napping belly up and i was like that's what it must feel like to not have a uterus right now anyways also just quick addenda you know as we're ticking through the list of people I hold responsible and blame for this development and others to come, dideption, here go all of those things. And of course, Mitch McConnell blockading the appointment of Merrick Garland to the Supreme Court. These were precipitating events that got us to where we are today.

Can I add to that? All of the people who are like, Hillary Clinton is a cop. There's no difference between her and Donald Trump. Like, those people are on the list, too. Oh, yeah. Definitely. Definitely. The Butter Emails crowd. This all happened on November 8th, 2016. Yeah.

That got dark really fast. Don't worry, though, listeners. We are going to do our best to lighten things up. There's sure to be a little Ginny Tonic cocktail segment. But we don't have that much to say about Ginny herself this week. But it's only Saturday morning, so who knows? But we definitely got some new and tantalizing details about all of the machinations around January 6th. So in the background of all of this Dobbs, Fakukta, Meshugganus, we also had the January 6th hearing dropping bombs left and right.

And one of the bombs that was dropped is that some members of Congress are not just representing the people, but maybe seeking pardons while they do it. So MAGA, making attorneys get attorneys. Awesome. I mean, look, if this court is basically allowing and encouraging governments to criminalize women for exercising their constitutional rights, like, should I be asking for a pardon? Like, should I be like, if there's a pardon list in the works, I'd like to be on it? I mean, it's a question. It's a question. Yeah, it's possible we all need to be on that list. Let's tweet to the White House. There's a pardon list. The ladies would like to be honest. Criming while podcasting. Podcasting is criming, right? We are speaking. We're speaking while possessing uteruses. Right. Without the permission of our commanders. All right, so let's get into the cases.

Kate, what's the first one? This is hard, but yes, we're going to shift gears and walk through some of the non-DOBS cases that we got last week. Okay, so head in the game. We're going to begin with Marietta Memorial Hospital v. DeVita, which is a case about Medicare. So the Medicare statute says that a health insurance plan may not differentiate in the benefits it provides between individuals having end-stage renal disease and other individuals covered by such plan on the basis of the existence of end-stage renal disease, the need for renal dialysis, or in any other manner. Okay, here a hospital insurance plan offered limited coverage for outpatient dialysis treatment,

and the question in the case was whether the Medicare statute provided for disparate impact liability, which we will explain in a second, and if it did not, whether the plan provision unlawfully differentiated between people based on end-stage renal disease. We previewed this case earlier, but let me just reiterate. The first question here is whether the statute prohibits policies that have a, quote unquote, disparate impact on people with end-stage renal disease. So policies whose result is to disadvantage people with end-stage renal disease, even though there's no specific language in the statute that actually calls out or in the policy that calls out people with end-stage renal disease.

So again, the text or purpose of the policy is not necessarily to disadvantage people with end-stage renal disease, but it in fact has that impact nonetheless. And the court unanimously agreed that the statute did not provide for disparate impact liability. Kel, surprise. But it did divide seven to two over whether the health care plan limiting coverage for outpatient dialysis treatment differentiated between people based on their having end stage renal disease. So Coach Kavanaugh wrote for the majority, and he said it did not because the plan treated everyone, whether you have renal disease or not, equally. And no one can get outpatient dialysis treatment. That seems like a really good outcome. I mean, as Melissa's laughter suggests, the dissent by

Justice Kagan joined by Justice Sotomayor reacted like, but needing outpatient dialysis treatment is a pretty good proxy for having end-stage renal disease. Because you don't get dialysis unless your kidneys are failing, as they do when you have end-stage renal disease. So the group that is affected by this plan provision is the group with end-stage renal disease. And so Justice Kagan and Justice Sotomayor were like, okay, that means the plan does differentiate between people based on whether they have end-stage renal disease. So this dispute and some remarkable passages in Justice Kagan's dissent, which we'll highlight, relates to something we talked about on our Pride episode

with Chase Strangio and Joshua Matz, which is states and occasionally the federal government have made arguments along the lines that, well, these laws don't discriminate on the basis of sexual orientation or gender identity. They just prohibit everyone from marrying a person of the same sex, or they just prohibit everyone from undergoing gender affirmation therapy, ignoring, of course, the very close correlation between the things the statute prohibits and the very groups affected by them. So the fact that the Supreme Court embraced a version of this argument, albeit in a specific statutory context regarding Medicare, is concerning. They're not necessarily going to go to the point of embracing these specious distinctions in other anti-discrimination contexts. This decision

certainly doesn't alter the status of precedents like Obergefell on marriage equality, but it does make you wonder where this court might go. And Justice Kagan's dissent includes a passage drawing these parallels. She notes outpatient dialysis is an almost perfect proxy for end-stage renal disease. Because that is so, common sense suggests we should not care whether a health plan differentiates on that basis. And then she cites decisions like Lawrence v. Texas that have explained that a penalty, this is her writing, that a penalty for homosexual conduct is a penalty for homosexual persons. She also quotes a line from the court's prior cases, which she had brought up at oral argument, that a tax on wearing yarmulkes is a tax on Jews.

So this majority opinion by Justice Kavanaugh, drawing a distinction between outpatient dialysis treatment and end-stage renal disease, might be limited to this specific statutory context. The first footnote in the opinion suggests that it was significant in the court's analysis that this statute was about differentiation in the context of health care benefits. But, you know, it's hard to know how to take this given the chaotic energy coming out of the court. Justice Kagan's closing line in the dissent was, now Congress will have to fix a statute this court has broken.

So the next case we wanted to talk about was United States v. Taylor. This is an ACCA case. That's the Armed Career Criminal Act. And it has a good outcome. And so Leah Lippman is in her happy place discussing it. Let me describe the statutes that are involved in this case. So first is the Hobbs Act, which criminalizes robberies or attempted robberies with an interstate component. Then there's a provision of the Armed Career Criminal

Act, or ACCA, which is a statute that authorizes enhanced penalties for individuals convicted of other crimes. And the provision at issue authorizes additional punishment for people who use a firearm in connection with a crime of violence. The question in this case is whether an attempted Hobbs Act robbery qualifies as a crime of violence for purpose of the statute because it has as an element the attempted use of physical force against the person or property of another. And the court held that it is not a crime of violence in a typically overwrought opinion on statutory interpretation by your favorite proponent of the rights of criminal defendants, Neil Gorsuch, who wrote for a 7-2 court. So Leah, can you break down this amuse-bouche fantastic opinion for ACCA

defendants? So the court relies on something called the categorical approach, which we've talked about before. And if you are clerking is something you should know about because you will be using. Basically, it means that when courts are asking if a prior conviction qualifies as a crime of violence, they don't ask, they can't ask how any particular defendant committed the crime, that is the actual facts of the crime. The only relevant question is whether the crime at issue always requires the government to prove beyond a reasonable doubt as an element of its case, the relevant elements of the Armed Queer Criminal Act here using attempting to use or threatening to use force. And because Hobbes Act attempts only require the government to show a substantial step and an intent to unlawfully take or obtain property that doesn't have as an element the use of force. Okay, so to explain this, Justice Gorsuch worked in a hypothetical from argument that was actually started by Justice

Breyer and later picked up by Justice Barrett. And I personally appreciated Breyer's questioning getting a nod in an opinion. So the quote slash hypo that Justice Gorsuch discusses is, suppose Adam tells a friend that he is planning to rob a particular store on a particular date. He drafts a note, your money or your life, that he plans to pass to the cashier. When the day finally comes and Adam crosses the threshold into the store, the police immediately arrest him. The point is he hasn't actually like threatened anyone since the person doesn't know about it. That actually draws on a question from oral argument from Justice Breyer. So we'll play that clip here. I'm not answering the concrete. I mean, I probably am being overly imaginative, but my experience suggests that there are quite a few cases where people might go into a bank, you know,

and they're going to rob it, and they use a wooden gun, or they use something that looks like a gun, or they have something in their pocket that looks like, okay. So somebody goes and does an enormous effort to get the right shape and the right kind, but it's made out of wood, you know, and he walks into the bank and just as he's about to present it to the teller and say, give me your money or your life or something, before the policeman walks by. Well, the teller turns the other way. And before the teller turns back, the policeman walks by. Goodbye. End to that. And here is Justice Barrett picking up on that question. I just want to be clear about what you're conceding. So you're saying, you know, you've, Justice Alito is right. I think

the government has to answer whether such a thing is an attempt to threaten to use force. You're saying that if someone is in the parking lot of a convenience store that they've cased out, has in their pocket a note that is going to pass to the cashier saying your money or your life, and also has a loaded gun on them, gets out of the car and starts walking towards the convenience store, and then is intercepted because maybe as the chief had posited, he's confided his plans to a confederate. And so there's a way to prove intent. You're saying that the government could not prosecute that as an attempt to threaten.

Yeah, it is nice that Gorsuch referenced the Breyer question. You've got to give it to him. Neil Gorsuch, more gracious than Sam Alito. I feel like that's true. The bar is so low. I was about to say, can you think offhand of someone less gracious than Sam Alito? It is hard. I cannot. This is sort of like, do you want a cookie for this? I mean, so he referenced a hypothetical that Breyer mentioned. Without disparaging his elderly colleague who's literally one foot out

the door. It is a nice gesture. I mean, it is the sort of things that ostensibly colleagues do for each other, especially as one of them is leaving. The pickings are slim is my nice gesture. I mean, it is the sort of things that ostensibly colleagues do for each other, especially as one of them is leaving. The pickings are slim is my point here. Okay, look at you with your silver lining playbook, like you Bradley Cooper, Jennifer Lawrence. rejects the idea that anyone who takes a substantial step has objectively threatened anyone. And, you know, like, of course, and annoyingly relies on a slew of dictionary definitions in a footnote, right? Definitions of threat. Kel, surprise. I know. So they also reject the syllogism that if a crime would constitute a crime of violence,

then any attempt to commit the crime does as well, a potentially important limit on ACCA. They also reject the idea that the government can show a prior conviction is a crime of violence unless the defendant provides evidence about how his crime of conviction is normally committed or prosecuted, which again, like having- Best practices for robbery. Robbery best practices. Yeah. I mean, that just would have been like a really tall ask of defendants and potentially greatly expanded the scope of the Armed Career Criminal Act, basically saying, you know, sure, the crime could hypothetically be committed in a way that didn't include an element of force,

but it usually is. And therefore, that's good enough for an additional five to 10 to 15 years in prison. So you know who objects to all of this? Let me guess. This is a seven to two decision. Who do you think are the two who are like, put them all in jail? If you're John Eastman and you're like, I'm pretty sure we can get two votes for Donald Trump's theory that he's the king for life. Who do you think those two are? I mean, I think you know. So justices Thomas and Alito dissented here and they're basically the TLDR of the dissent is since the defendant would likely win under our precedents, let's throw the precedents out and abandon the categorical approach altogether because say it with me, stare decisis is for suckers. Yep.

Yeah. So anyway, the majority, again, sort of shows a little bit of the internecine warfare that's going on in the conservative bloc, which I love to see. Right. Neil is nice to Steve Breyer, less nice to Thomas and Alito here. I mean, I think, again, what you're qualifying as nice is really expensive, Kate. But he does get in some choice digs at Thomas and Alito. So there is footnote one where he notes, and this is Gorsuch speaking, Justice Thomas concedes that the foregoing analysis is correct under our categorical

approach precedents. He contends only that we should overrule 30 years worth of our categorical approach precedents in order to relieve the quote-unquote bind they place on prosecutors, but not even the prosecutors for whom Justice Thomas professes concern seek anything like that. Overruling 30 years' worth of precedents. Wow, that sounds bad. I mean, heal thyself. But Will, it's really snarky.

I like the snarky voice you're doing. I'm wondering whether we need to cast this part at all. Because for a while, obviously, we were trying to recruit Roger Jean, who I guess is maybe coming back to Bridgerton. Have you guys? I did read that. Our intern, Roger Jean Page. I mean, I'm just going to say this between us.

Like he's been falling down on the job lately. So obviously something else has been going on. Well, you have stepped up and you're, I think your delivery of good Gorsuch. I mean, this isn't like Gorsuch on statutes. This is just Gorsuch doing Gorsuch, but it was good. I like the snarky Gorsuch that you're channeling now. Okay, sorry, go on. So then there's also footnote three where he really sticks it to Justice Alito.

Justice Alito offers still another argument on the government's behalf. Justice Alito acknowledges that his some is good enough approach defies this court's precedence. I love it. Oh, yeah. Most definitely. He's a Virgo, I'm just going to say. This is big Virgo energy. But like, as I feel like we said, one episode, two episodes ago, it's all a blur.

It's hard to keep track. Yeah. Right? Like, Neil Gorsuch, this is the only register in which Neil Gorsuch writes and speaks. Basically, a broke clock is right twice a day. Right. This is Neil's time. And footnotes one and three were those times. That's right.

Twice. Twice. So this, Taylor, is a great outcome. But I, per usual, need to be a bit of a wet blanket on the opinion for a second. Other people, unlike Mr. Taylor, will not be able to file what are called second or successive 2255 motions based on this opinion in Taylor. You can only file second or successive motions based on new facts or new rules of constitutional law. But Taylor is an opinion that interprets a statute not invalidating it. And after next term, a case we've alluded to, you won't be able to file habeas petitions asking a court to correct your sentence either. That case is Jones v. Hendricks,

where the court is going to say if you were wrongly convicted or sentenced because of an error of statutory interpretation, no habeas for you. Even though these cases could result in people having received 120 additional months in prison that they shouldn't have. The Armed Career Criminal Act mandates at least an additional five years for the enhancement. So just to come back to this, like without Johnson, other people after this opinion who were similarly incorrectly sentenced would not be able to get their sentences corrected if they are yet to be sentenced or defendants who were just sentenced, but unclear if the court will allow courts to actually correct errors in prior cases. Also, I'm going to channel Neil and redirect it at Neil. In a passage of this opinion, Justice Gorsuch writes, later, Mr. Taylor filed a federal habeas petition, except he did not.

Mr. Taylor filed a second or successive 2255 motion. That is a motion to correct your sentence. It's part of your criminal case. It's filed against the United States. You don't file it against the detainer. It's not a civil action. It's like, Neil, do you even know what a federal habeas petition is, even though you are about to just destroy habeas? And I guess the answer is maybe not. Wow. That was a very satisfying boom lawyer, Leah. Very satisfying.

I mean, this goes back to a different point. Do you remember a couple of terms ago he had to issue an errata in an opinion? Like there was a lot. Don't you remember this? We talked about this on an earlier episode. I'm remembering him his first like week or two on the bench interrupting the chief to suggest that he really meant interstate 80 as opposed to interstate 90. I remember that one. And then had to walk back 10 minutes later after having requested an atlas to be like, oh, sorry, chief. Remember when I interrupted you and obnoxiously corrected

you? You were actually right. And the chief was like, why are you still talking? Yeah, I remember that. So there's that. But I mean, I do actually think he has had to issue like formally issue errata and opinions because they messed up some sort of like weird facts from the record. I'm thinking of Kavanaugh in a voting case. I remember Kavanaugh having to do that with Wisconsin or no, Vermont, Vermont. In the Wisconsin case. Yes, in the Wisconsin case, he had to do it. Some clerk's going to get in trouble, I think, is the point of all of this. Anyway, I'm not mad about it. It's still important. Leah, I'm glad you corrected that record.

The court also decided a major First Amendment case in Carson versus Macon. And as we previewed when we talked about this case earlier in our episode about the oral argument, we expected that the court would essentially read the establishment clause out of the Constitution and broadly refashion its free exercise jurisprudence. So at issue here was Maine's tuition assistance voucher program. So Maine has this program because certain jurisdictions in Maine are too small or perhaps too rural to actually field a high school. And so in those particular jurisdictions, parents have the option to send their children to private schools, and the state will give them a voucher to defray the cost of doing

so. The limit, though, on the voucher program was that the schools had to be non-sectarian. And Maine did that specifically because it was trying to avoid the problem of the Establishment Clause as dictated by the court's earlier precedence on the Establishment Clause. So there shall be no establishment of religion. The state didn't want to be seen as perhaps endorsing a particular religion. And so they only offered this tuition assistance to non-sectarian schools. The court in this particular case steps in and says that Maine, if they are going to have this tuition assistance program

and they offer this benefit to those going to secular schools, they must also provide the benefit to parents who want to send their children to religious schools. So the idea here is that there has to be equality between those going to religious schools. So the idea here is that there has to be equality between those going to religious schools and those going to secular schools. And this development really, I think, is a continuation of an ongoing trend of impigning free exercise rights, at least for certain groups, and we'll touch on that in a minute. And perhaps in bigening free exercise rights, diminishing the scope and substance of the establishment clause, because we are essentially here requiring states, if they support non-sectarian schools, they must also affirmatively

support religious schools. Yeah, and not just religious schools, schools that are doing affirmative religious instruction, right? So this case very much continues a trend that we have seen grow over the last couple of years in a couple of cases. First, Trinity Lutheran, a case in which the court held that a program that would have provided funds for resurfacing playgrounds had to be available to religious schools. And that was a decision in which Justice Breyer and Justice Kagan joined the conservatives. Then a couple of years later, Espinoza, a case we've covered on this podcast, the court this time in a 5-4 traditional conservative liberal split, held that the state of Montana couldn't deny funds to religious schools just

because they were religious. Although in that case, there was not a suggestion that these schools were putting the funds to religious instructional use. And in each of those two cases, the court was at pains to suggest it was deciding very limited questions, not throwing into question more broadly the court's either free exercise or establishment clause jurisprudence. And then all of a sudden, we get to Carson versus Macon. And the court basically says, even though we said we were making very limited moves in those previous cases, all our earlier cases have undermined the foundations of the precedents we have distinguished. And so we have no choice but to find this pretty dramatic thing, which is basically that where once states like Maine understood the Constitution to

mean the Establishment Clause actually prohibited them from funding religious instruction with state dollars, the court has now not only said the Establishment Clause permits them to use state funds for religious instruction, but requires it. And that is a radical, radical transformation in a few decades. The Establishment Clause, also for suckers. The methodology, though, I think is really worth highlighting here because the Roberts courts does this constantly. Like, this is the way they basically dismantled public unions. You know, it started with, you know, one case, like, we're just sort of chipping away at

this. Are there some problems with public unions in the First Amendment? I don't know. Maybe. The next case, oh, I think there are definitely some problems with public unions. But we're not doing anything. And then by the time they get to Janus, they're like, we told you that there are all of these problems with public unions. So now we're just doing away with all of these protections. A factoid that I don't think we noted when we previewed the case is that Justice Souter,

right, who's retired from the Supreme Court, but still occasionally sits by designation on maybe just the First Circuit, maybe other courts of appeals occasionally, but primarily the First Circuit, was actually on the panel that upheld this main scheme that the court has now struck down. Noted liberal squish. Yeah. Souter. No more Souter.

He got some love in the dissent in Dobbs, as we described in that emergency episode. Yeah. But, you know, they were like, oh, this dinosaur. So as Kate kind of summarized, the court says the distinction between status and use for purposes of the free exercise clause isn't relevant. That is not only can you not differentiate between entities based on their status

as religious institutions, you also can't distinguish between them based on whether they are using the funds for religious purposes either, which I think is interesting to put alongside the Marietta opinion that we just highlighted and possible distinctions the court might embrace between conduct and status in the context of LGBTQ discrimination or in the context of Marietta, discrimination in health care. And again, to see the court is embracing the idea that there is no such distinction in the free exercise clause, but maybe there is elsewhere.

So Justice Breyer wrote the dissent that was joined by Justice Kagan and in part by Justice Sotomayor. And this was kind of the main principal dissent. There was a telling passage in the dissent that I think foreshadows or presages the Supreme Court's forthcoming opinion in the Coach Kavanaugh prayer at religious football case, Kennedy versus Bremerton. So in the passage in the dissent, Justice Breyer is listing off, you know, the court's prior establishment clause jurisprudence. And in a long string site in which he lists all of the ways in which the court used to

say the establishment clause doesn't allow state-sponsored or state-supported religion, he describes the court's prior decision in Santa Fe Independent School District versus Doe as holding no prayers during public school football games. We'll see, Steve. Exactly. Justice Sotomayor dissented here. And this is a very fiery dissent that I think, again, referenced the sort of trajectory and was calling attention to this trajectory. So she opens with, this court continues to dismantle the wall of separation between church and state that the

framers fought to build. So hey, we can do originalism too. She then closes with, what a difference five years makes. In 2017, I feared that the court in Trinity Lutheran was leading us to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. Today, the court leads us to a place where separation of church and state becomes a constitutional violation. With growing concern for where this court will lead us next, I respectfully dissent. I mean, I think that's a very good point. Like if you as a state are at all trying to avoid liability for violating the establishment clause, based on this opinion, you have violated the free exercise clause.

Yeah. Like they have made the establishment clause unconstitutional. I mean, but they didn't overrule it. So. No, exactly. They just distinguished it. It's never relevant. It's like Miranda. It's a right, but you can't enforce it. Exactly. Right. You can only trammel it. I do think it is interesting to think about, you know, the impact of Carson versus Macon alongside, you know, a disturbing trend over the last several decades of hollowing out public education. You know, we see today calls to pull books from public schools. We see trends of going after and attacking teachers. We discussed the don't say gay law in the Pride episode with Joshua Matz.

There have also been horrific stories emerging out of jurisdictions that have limited the teaching of CRT, in which they are going after teachers who attempt to discuss race in public schools, you know, see also Katonji Brown Jackson's confirmation and the invocation of anti racist baby. Yes. Senator from Cancun always making great points. And, you know, there have been substantial limits and cutbacks on public school funding at the same time that the Supreme Court has permitted de facto segregation to increase in public schools. I wanted to give a shout out to the work of Caitlin Malott, a Clemenco fellow at Harvard Law School, who has a wonderful forthcoming paper on this topic called Education Democracy Nexus. It's forthcoming in the Georgetown Law Journal.

It is about how rather than bolstering the project of public education, the court has worked over the past century to hobble the common school enterprise. And I think it's interesting to consider or think about Carson as part of that larger phenomenon. Okay, so we should note some guessing about opinion assignments. We know now that Kagan and Breyer didn't get an opinion in December, even though there were nine cases in that sitting. So did an opinion flip, do you guys think? Like maybe Cummings? Or do they literally just not evenly allocate majority opinions to Democratic appointees anymore? Democratic appointees are not allowed majority opinions anymore.

This is a 6-3 court. I think that that might be right, I guess, to be seen. Right. So as we were suggesting, or as Melissa noted, while Carson is part of the beginning of the free exercise clause. There are questions about who exactly will benefit from those free exercise rights. And lest you think that this very religious protective court will recognize free exercise claims made by other religions, there was a post on the conservative libertarian blog, The Volokh Conspiracy, suggesting that at least when it comes to one religion, Judaism, no free exercise claim could or should ever succeed.

Well, at least reform Judaism, right? And conservative Judaism. Okay. But Orthodox Judaism, he might be willing to suggest, does give rise to the exercise clause claims. They seem committed. Reform or conservative, you were told that a lot. Not sincere. Sorry to jump in, Leah. No, no, no, no, no, no. That is an important distinction. And look, I don't particularly like giving airtime or oxygen to like off the wall, offensive, deranged, anti-Semitic ideas. But I think it is important to note ideas bubbling up in the conservative legal movement so we can assess where the doctrine might be going and take necessary precautions and organize accordingly. With that in mind, I think it's

worth noting a number of people, including you, Leah, have talked about the prospect of the free exercise clause being used as a challenge to some of these abortion restrictions because there are certain religions that require that the life of the pregnant person be prioritized over the fetus. And if an abortion is necessary

to save that person's life under religious law, then you have to proceed, and it's a tenet of religion. So this seems to be animated by an interest in closing down free exercise as a restriction on state limits on abortion. But it also, as you're suggesting, has more wide-ranging consequences as to who gets the benefit of the free exercise clause. Yes, no, that's absolutely right. So this specific post was actually written about the religious claims being brought by individuals of Jewish faith challenging Florida restrictions on abortions. And the gist of the post was, well, Jews, or at least Reform Jews and conservative Jews, can't make a free exercise claim because they're

not sincere about their religion, and they don't actually hold any religious obligations or commitments. I am not joking. These are quotes from the Post. Quote, The legal concept of a substantial burden, which was developed in the context of Christian faith, does not neatly map onto a Jewish faith that does not actually impose any requirements on congregants. I continue. For Christians, perhaps, quantifying the consequences of committing a sin is easier. For Jews, however, the issue is far more complicated. Judaism is not a centralized religion. There is no Jewish equivalent of a pope. We often speak of Orthodox, conservative, and reformed Jews, but even within these categories, there is no official or standardized set of teachings.

I need to continue here. Moreover, every Jew can look to faith in his own fashion, and there is no obligation to be consistent. A Jew could hold one opinion in the morning and then change his mind over lunch and go back to the original position after dinner. The old saw, two Jews, three opinions is apt. How did you read that and not like have your head explode? I believe we have an obligation to inform people about what might be coming, like what is counting as conservative legal thought these days. I mean, like this post is authored by the same person who spent like weeks and months after Dobbs saying,

if the Supreme Court doesn't overrule Roe, it will be the end of the conservative legal movement. You know, it's not that I value these statements, nor do I think they are legally sensible, accurate, coherent, or defensible. But it is important to know what might be happening. On the ground of their being legally indefensible, Micah Schwartzman, a professor at the University of Virginia, did a fantastic thread on Twitter about this post and how it is an assault on free exercise rights of liberal believers more generally and also legally wrong. He also has a co-authored piece with Dahlia Lithwick in Slate about it.

And we should also say that the arguments that he's making sort of seem to sweep in just about every religion other than maybe Catholicism and like some strains of Protestantism. Like there are many, many religions, not just Judaism, are decentralized and come in many flavors and varieties. And it literally sounds like a couple of very sort of orthodox strains of Christianity are the only things that would qualify as religion in this formulation. And that is, I mean, it feels incredibly both specific and anti-Semitic and offensive in that way, but somehow sketch an incredibly narrow sort of coverage range for free exercise claims in general.

Well, I'm just remembering Masterpiece Cake Shop and Justice Kennedy saying, like, you can't actually state facts about the use of religion to defend particular views, because doing so would be to suggest that religion was instrumental and religious belief was insincere. Like, what? I mean, it attacks some of what I at least personally think are some of the most wonderful things about Reform Judaism, not claiming to know all the answers, encouraging people to try to figure them out for themselves.

Humility. Humility is for suckers. Right. All right. Moving right along, we're going to fly through some of these other ones. Up next is United States versus Washington. This was a unanimous opinion written by Justice Breyer in which the court concluded that the Washington state workers' compensation scheme unconstitutionally discriminated against the

federal government in violation of the supremacy clause. The case, which we previewed, involved a Washington workers' compensation scheme that made it easier to establish causation in workers' compensation cases and thus made it easier to get workers' compensation where there were contracts at a federal nuclear facility in Washington. So under the court's intergovernmental immunity cases, states can't single out federal workers or federal property for less favorable treatment. And the court concluded here that Congress had not authorized the state to discriminate against the federal government in this way. So easy breezy, consensus driven court.

Another case we wanted to take through is Shoup v. Twyford, a case that continues the trend of how in habeas cases, if you're seeking relief, the answer is no. The only question is why. That being said, the opinion is more minimalist than it could have been. It didn't hold that the habeas statute stripped courts of jurisdiction under the All Writs Act, for example. The restraint. The restraint. Such restraint. The case is a technical one. It holds that courts don't have authority under the All Writs Act, a statute allowing them to issue various writs in aid of their jurisdiction over other matters, that they can't use the All Writs Act to order a prisoner transported for medical testing unless the prisoner can offer a plausible explanation for how the procedure would produce

evidence admissible in a habeas proceeding. However, in light of the court's recent opinion in Shin versus Martinez-Ramirez, evidence is almost never going to be admissible in habeas proceedings. And the opinion here by Chief Justice Roberts definitely trades on the principles animating Martinez-Ramirez, the notion that claimants all do fact development and investigation in state court proceedings. But of course, like sometimes you don't know what claims you're going to present until you gather evidence. And that just makes it hard to do here. Justice Breyer, Justice Sotomayor, and Justice Kagan joined one dissent and Justice Scorsese wrote a dissent for himself. All of them would have held or at least declined to hear the case

because they weren't sure that the court had jurisdiction. All right, another case to highlight, this one a little more consequential, although this was a procedural question, is Berger v. North Carolina State Conference of NAACP. And this was a challenge to, or it involved a challenge rather, to North Carolina's voter ID law, which the Democratic AG was defending. But the Republican legislature in North Carolina did not think the Democratic AG was doing a good enough job of defending it, or at least not defending it in the way that they would have done. So they asked the court to intervene. And so it's really a procedural question. But the court held that, in fact, the Republican legislature could intervene,

largely noting that under North Carolina's statutory law, the legislature has the authority to intervene in cases where state law is called into question. So this was an eight to one opinion by Gorsuch, not on the merits, just on this procedural issue. The merits issue will obviously be an interesting case, and we'll see how that plays out below. So the next case is Becerra v. Empire Health. This case is about reimbursements under Medicare Part A, and it produced a quite unusual 5-4 lineup. Okay, so the case is about Medicare reimbursement rates. And just by way of brief background, people 65 and older are entitled to benefits under Part A of Medicare. Medicare pays hospitals a fixed rate for inpatient hospital treatment, but the rate is subject to certain adjustments, including what's called the

disproportionate share hospital adjustment, which basically provides higher rates to hospitals that serve higher than usual percentages of low-income patients. The question in this case was whether to count for purposes of determining whether a hospital would receive this adjustment people who are eligible for Medicare, but for whom Medicare may not have paid either part or all of their hospital stay. So in this case, the court upheld an HHS regulation that counted these individuals for purposes of the disproportionate share hospital adjustment. So the case is another statutory interpretation case about the lawfulness of an agency's regulation that fails to cite the Supreme Court's decision in Chevron

that had said agencies get deference when interpreting the statutes they administer. It also doesn't really talk about the standard under which courts review agency regulations interpreting the statutes. This opinion is by Justice Kagan, a pretty staunch defender of the administrative state, and the opinion says, quote, HHS, the Department of Health and Human Services, correctly construed the statute in its regulation. That formulation, basically saying we court agree that this is how the statute should be interpreted, may have been necessary to keep the five justice majority, which consisted of three Democratic appointees and Justices Thomas and Barrett, which is one of the stranger 5-4 lineups in a while. There was a dissent by Justice Kavanaugh for the four remaining Republican

appointed justices. Okay, now I want to take a moment to briefly shout out Cardozo graduate Amanda Beck, who won the strict scrutiny swag bag. And Amanda, those are now collector's items in there. Those are discontinued lines. I have not a whole lot left. So you got some really good ones. Amanda was the winner of the Cardozo Public Service Auction in April. And I also want to shout out the graduates of 2021 to 2022 Cardozo Criminal Defense Clinic with whom Amanda worked. The students were supervised by the fantastic Jonathan Oberman and Catherine Miller. Katie Miller! Yeah, Katie Miller. And they spent the last two years doing incredibly important work with individuals in custody in inhumane and inexcusable conditions at Rikers Correctional Center. The clinic recently wrote a letter to the New York governor and mayor protesting those conditions and urging them to take action. Amanda, thank you, we can talk a little bit about the January 6th

developments. I mean, I don't really know what more to say other than like, members of Congress asking for pardons, like WTAF, amazing. So let's just sit with that for a minute. There's some other court culture that we'd like to call your attention to. And it brings together some of my favorite things, not only the federal courts, but also the British royal family. And of course, my particular favorite, Meghan, the Duchess of Sussex. So perhaps you know, listeners, that the Duchess of Sussex has a half-sister, Samantha Markle, who basically trolls her incessantly and just seems to be really jealous that the

Duchess of Sussex is married to a very hot royal and is living her very best life in Montecito in a massive mansion with, I believe, 14 bathrooms, according to the Daily Mail. So she has filed a lawsuit against the Duchess of Sussex, alleging that the Duchess of Sussex has defamed her in various ways. And she particularly cites the publication of Omid Scobie and Carolyn Durant's book, Finding Freedom, which, as you know, is not written by the Duchess of Sussex, but actually discusses her and her husband's decision to leave the royal family. But I digress. Leaving aside the absolutely fakakta defamation claim, there were a number of procedural motions in this case. Among them, Samantha Markle actually requested that the district court judge who was assigned to this case, that's Judge Charlene E. Honeywell, be

recused because she was appointed by President Obama. And as Samantha Markle alleged in her request to disqualify the judge from presiding over the case. The Obamas, Prince Harry and the Duchess, have a very close relationship. And because President Obama appointed this judge to serve on the federal judiciary in 2009, she should be recused from hearing the case because she has this close personal relationship with President Obama.

Judge Honeywell, to her credit, took this as seriously as one could, given the circumstances, and made sure that Samantha Markle understood that her claim had been heard. So this is what Judge Honeywell writes. President Obama's appointment of the undersigned without more does not serve as a basis for recusal. Honey. She didn't say honey, but you know. An objective, disinterested lay observer fully informed of these facts would not entertain significant doubt about the undersigned's impartiality.

Boom, lawyered. This order denying the disqualification motion comes three weeks after Samantha Markle had filed an amended complaint against the Duchess of Sussex, again, seeking damages for defamation and injurious falsehood, which the Duchess of Sussex has asked to be dismissed entirely. So we will definitely cover this breathlessly as more becomes available. But props to you, Judge Honeywell, for taking this seriously and giving it perhaps more respect and airtime than it deserved.

I am so glad we found a way to incorporate Meghan Markle into the podcast, Melissa. I feel slightly better. Thank you. Thank you for letting me do this. I think we should end there rather than talk about January 6th. Yeah. Right? Right.

Let's like – Yeah, let's not go back down. A light dessert. Yeah, no. I mean, we got some pretty stunning revelations in the last week of hearings that we do need to talk about on a future episode, but let's not do that. I still can't get over

congressmen needing pardons. Mm-hmm. Or like the stuff inside DOJ, which was so much crazier than we had realized. The best was like as all of that's dropping, Jeff Clark is basically getting raided. Yes. All right. So let's end.

We're leaving our listeners in suspense. I think that's good. More to come. More to come as always. Hey there, listeners. You're angry. We're angry. Let's go do something about it. From directly supporting patients who

need abortions right now to electing pro-choice candidates in 2022 and building a progressive majority over the long term, you'll find everything you need to fight back in our Fuck Bans Action Plan Hub at votesaveamerica.com forward slash row. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Melissa Murray, and Kate Shaw. It's produced and edited by Melody Rowell, audio engineering by Kyle Seiglin, with music by Eddie Cooper, and production support from Michael Martinez, Sandy Gerard, and Ari Schwartz, and digital support from Amelia Montuth. And this summer, we have intern support from Anushka Chander.

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