Strict Scrutiny - Toddler Logic

Episode Date: March 1, 2021

Leah is joined by Josie Duffy Rice, President of the Appeal, and Jay Willis, senior contributor at the Appeal, to discuss some Court related news, preview the upcoming Voting Rights Act case, and chat about some emerging Fourth Amendment issues on the Court’s docket. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello and welcome back to Strict Scrutiny, the podcast about the Supreme Court and the legal culture that surrounds it, a project of The Appeal. I am one of your hosts, Leah Littman, and today I am joined by two guests that I am super excited about. First, we have

Josie Duffy Rice, the president of The Appeal and host of the acclaimed Justice in America podcast, who now joins Iliestal as the only person to ever make a repeat appearance on the podcast. So thanks for putting up with us twice, Josie. Thank you for having me. That's a very esteemed company, so I'm very grateful. And we also have with us today Jay Willis, a senior contributor at The Appeal, whose writing we have talked about on this podcast before. So welcome to the show, Jay. Hey, thanks so much. You joined Senator Sheldon Whitehouse as the only straight white cis man to ever appear

on the show. So congratulations. Also privileged company. You know, Josie and I met 10 years ago in 1L section. And this is exactly what the law school career services offices promise you. You go to school, you make friends, you get in the alumni network. And then 10 years later, you're writing on the internet, doing tweets, doing podcasts, living the dream. You know, they said you should go clerk for the Supreme Court. And we said we want to do something even more influential than that. We want to tweet. We're very, very glad to be here.

So thanks for having us. Let this be an inspiration to all of the law students, particularly first-year law students listening. Make friends, and then you will find yourself on a podcast and social media platform with them 10 years later. So today, we are going to be covering, in addition to whether and when and why to tweet, some Supreme Court news. We'll also be previewing a case that will be argued this upcoming week. And then we will talk about a set of cases that together and collectively raise some

important questions about the scope of policing authority. Let's get started on the news. The Supreme Court decided to hear Wooden v. United States, a case about the Armed Career Criminal Act. ACCA is the federal law that prohibits certain people from possessing firearms, including people with a felony conviction. Ordinarily, that crime is eligible for a maximum of 10 years imprisonment, but ACCA imposes a mandatory minimum of 15 years for people with three or more prior convictions for, quote, violent felonies that were committed on occasions different from one another. Most of the court's prior ACCA cases have addressed the definition of violent felony,

but this case is actually about what it means for offenses to have been committed on occasions different from one another. And specifically, it's about whether it is enough that offenses were committed sequentially rather than at the same time, even though the offenses might have been committed on the same day, just in succession, at the same place, etc. So the court will hear this in OT 2021, but I wanted to highlight it since ACCA is a passion project of mine. When we say offenses that might have been committed on the same day in the same place, we mean that very literally. His previous offenses for which he was sentenced are one aggravated assault and then 11 burglary convictions, 10 of which occurred in the same

year, 1997. And they occurred in the same year because those 10 burglary convictions are from one night when he and some friends burglarized a mini storage facility in Georgia. And the way those got charged is that instead of getting charged for burglarizing the facility, he got charged for burglarizing each individual locker. That's 10 different counts. And as a result, 20 years later, he gets hit with a mandatory sentence under ACCA. It's just yet another sign of the judiciary and the system sort of pretending that their hands are tied without acknowledging all the discretion that went into making the decisions

to begin with. So the mere idea that this was 10 different charges instead of one charge is because of a whole host of circumstances, many of which don't even have to do with the defendant. In different circumstances, he would have pled to one charge. He would have pled to something different. You know, the question about sequentiality is so interesting given that there was so much discretion basically misused or abused to begin with in this case. And the extent of prosecutorial discretion is something that this court has actually exhibited some concern about, at least when it comes to, say, like white collar criminal defense cases like the Bridgegate case of Kelly or, you know, the campaign finance, more campaign fraud cases like McDonald. But, you know, here the question is always, are they going to evince that same concern when we are talking about a different kind of or different set of crimes?

And, you know, thus far they haven't exhibited quite as much concern, although, you know, their willingness to invalidate some provisions and act as unconstitutionally void for vagueness is perhaps a step in the right direction. And hopefully, you know, that set of concerns will be present when the court later hears this case. Congress, any other elected officials are just generally now starting to exhibit some suspicion of prosecutorial discretion. But it's notable that they've only sort of started to care about that when prosecutors have said they were going to be more lenient, they were going to decide to not charge things, and not when we face 30 years of overcharging. And so, you know, after three decades of a mantra, that prosecutors have have good judgment and they know what they're doing and they have unfettered discretion and they can do what they want, we are now

seeing people all of a sudden be like, well, I didn't mean not charge drug cases, which just really highlights just how hollow so many of these principles are once they are actually challenged by the beliefs of those people who make the decisions. Yeah. If you ask anyone who's not a lawyer, how many places did Wooden Rob? They would be like, well, one, the storage facility. It just wouldn't occur to you to be like, well, oh, so he went into 10 different lockers. I certainly see how that is 10 independent constituent crimes. And it's an example to me of the way the legal system finds ways to just stack punishments, especially on like vulnerable people.

You can see that there's a logic behind this. But is it the logic that we want prosecutors to be using? Is it the logic we want the system to be employing? And we also know that when an opposite logic is more convenient for them, right, they'll use that one. It's not the sort of thing where you say, well, everybody knows if you rob 10 different storage units, that's going to be 10 different crimes. You know, this is not intuitive. And yet he's going to pay a serious price for it. So on that perhaps slightly optimistic note, maybe we can point out something that is actually perhaps a reason for optimism on the Supreme Court's docket, which was this past week, the Supreme Court vacated a court of appeals decision that had granted qualified immunity

in McCoy versus Alamu, in which a Texas corrections officer allegedly beat and then maced a prisoner without provocation. So the U.S. Court of Appeals for the Fifth Circuit, being the Fifth Circuit, granted the guard qualified immunity because there was no case with similar facts saying that beating a prisoner and macing them without provocation violated the Fourth Amendment. The United States Supreme Court remanded the case for the Fifth Circuit to reconsider in light of the Supreme Court's opinion in Taylor v. Riojas, the case we've talked about before where the court said corrections officers were not entitled to qualified immunity for keeping a man in extremely unsanitary and grotesque conditions for several days. I've noticed that this petition in McCoy was actually

brought by the same organization or one of the organizations that was involved in the Taylor petition, Rights Behind Bars, a fantastic new organization that is doing a lot of these prisoner rights cases and trying to change the law in this area. Yeah, another shout out to Rights Behind Bars. They're relatively new. They're a very scrappy organization. They don't have a ton of staff and they're really, really having an impact. And they've carved out a practice area that didn't exist before, which was getting qualified immunity wins in the Supreme Court for prisoners like that. That literally wasn't a thing that happened before the Taylor case. Groundbreaking stuff. So seeing these two, as we said, unusual qualified immunity decisions coming from the Supreme Court makes me wonder a little bit if this is a possible example of the court tracking public opinion. Like qualified immunity cases for so long have pretty much uniformly gone one way. But in the midst of this national discussion that we're having about police, police violence, and even more generally, the role that police do and should or should not play in society, it seems like taking action against literally some of the worst cop abuses is maybe literally

the least the court could do to sort of get behind that. And especially at a time also when you have this new conservative supermajority of which many people are very rightly afraid and about which they are very correctly concerned. It seems like this is a pretty low hanging fruit option to maybe earn some goodwill and legitimacy. That even more than goodwill could be somewhat of a driving factor here. I think the fact that there's so much skepticism about the police, and there is an undercurrent of policing as illegitimate, I think contributes to the need for the court to ensure that the police are still seen as an accountable, legitimate body. So I don't know how conscious that is, but it's not

surprising. For years, we could get away with never holding police accountable in any sort of way legally, right? And the approval rating of cops pretty much staying the same, you know, and it has really only started to shift in the last, what, seven years and really significantly in the last year. And you can see how for sort of any system of checks and balances, the need to reinstate legitimacy by ensuring accountability has to at least be a consideration. Yeah, that's interesting. So perhaps, you know, these qualified immunity decisions that go against police officers or corrections officers are in some ways legitimating an institution that has started to be questioned. Totally. I mean, the narrative, the not inaccurate narrative, right, is that police can do and as state actors can do whatever they want and there is no punishment. Even more than the question of public opinion for a body that is supposed to ensure state accountability,

that has to be at least worth noticing. One case that the Supreme Court also just decided that kind of goes against this trend a little is the Supreme Court's recently released opinion in Brownback v. King. So that case held that the Federal Tort Claims Act judgment bar prevents plaintiffs from suing federal officers for violating the federal constitution once plaintiffs tried and unsuccessfully tried to sue the federal officers for violating state law and had their case dismissed under the Federal Tort Claims Act. We previewed that case briefly and just wanted to note the result here. Some other developments that are more maybe will make their way to the Supreme Court, hopefully not in one case, and I'm not sure about the other. So a cert petition was filed in the Harvard Affirmative Action case, which we've talked about before on the show, students for fair admission versus Harvard. This is the case arguing that Harvard's race conscious admissions program is illegal because it violates prohibitions on discriminating on the basis of

race. And the plaintiffs in the case are now specifically and explicitly asking the Supreme Court to overturn Grutter versus Bollinger, the Supreme Court case that had said that it was permissible to consider race in admissions when the court upheld the University of Michigan Law School's admissions program. So this would be a case that the court wouldn't hear until next year, but it is, I think, an extremely significant case to watch, Again, given that it could effectively end all race conscious admissions. I just find the people who have built a career out of this so interesting because they really care about unfairness as long as that unfairness happens between September of your senior year of high school and April. Otherwise, the history of privilege or fairness before that is of no concern to them.

The only thing that matters is these couple of months of school admissions. This case is also interesting that we're talking about it because Jay and I met in an affirmative action reading group in our 1L year. And I had seen him wear a sweater around his neck before this. So I was absolutely sure he was in this affirmative action reading group for reasons different than me. And I was ready to, I knew I was just going to have to fight this Republican sweater neck wearing guy in my section. And then it turned out he had pretty good politics, but not great style. But his style has improved markedly.

I did not expect to have to litigate my 10 year old sartorial choices on this podcast. Yes, you did, because I bring them up all the time. I guess that's a good point. But rather than issue a substantive defense, I just want to say that, obviously, I have a lot in my past that I'm not proud of with respect to sweater proximity to my shoulders. This is something I'm trying to learn from. I'm trying to do better on in the future. You have improved so much. Never do anything. High five to you. Shout out to all of our listeners right now who are like very sheepishly undoing their fleece from their shoulders. I understand sometimes it gets a little drafty, but not so drafty that you want to put it on.

And I just respect whatever decision you make. That's fine. I mean, this too is in some ways like a note of encouragement for young law students listening, right? Like you too can learn, the Supreme Court can learn how to improve its qualified immunity doctrine. Jay Willis can learn how to improve his dress. So, you know, there we go. You do not have to be today who you were yesterday. We can all change. Speaking of not having to be today what you were yesterday, on Thursday evening, a district judge in Texas dropped a real hammer. So this judge,

Jay Campbell Barker, who was nominated by Donald Trump at the ripe old age of 37 or 38 and confirmed at 39, invalidated the federal eviction moratorium. That moratorium protects something like 40 million people from being evicted in the midst of a pandemic. And the judge said that the federal government lacked the authority to regulate evictions under the Constitution because evictions are, quote, not economic activity. They merely concern possession. Checks out, straightforwardly correct. JK, no. Evictions, those are literally the remedy for the breach of a contractual commercial agreement between a landlord and a tenant. when a tenant fails to pay an eviction is a landlord's remedy. To suggest this is not economic activity was just quite interesting to read.

I was thinking about sending this case to my con law students as like a FYI, but then also didn't want to confuse them. So really a mixed bag here. You know, I really recommend going to your landlord and saying I'm not going to pay my rent, but I don't worry. It's not even economic activity. So it's pretty much irrelevant. I mean, it's just it's just such a perversion of reality. It only works if you so badly twist the meaning, like the common understanding of what an eviction is, that you completely lose sight of, as Josie says, like any normal semblance of reality. Like he talks about how this is the criminalization of possession. Like what? No, this is your house. It's your house, man. And it's just like more poison brain conservative commerce clause contraction.

It's just yet another example as well of where this job forces you to dishonesty, right? The reality is that this guy knows that this is economic activity. He has to have some sort of reason to draw the conclusion he wants to are in a situation where 40 million people are at risk of eviction because they can't pay their bills because they've lost their job and there is no government help and you know we are this is really a band-aid this this moratorium was i mean it's very important band-aid but it's still a band-aid on a much bigger crisis and the fact that we are expecting the moratorium and the judiciary about the moratorium to solve what is a much bigger problem is in itself kind of an issue. I'm sure we'll solve that bigger problem in infrastructure week, though. Oh, yeah. Don't worry. We got it. Yeah.

I was also thinking about this case in the context of from a couple of years ago now, NFIB v. Sebelius, when Roberts famously argues that the purchase of health insurance is not economic activity and thus can't be regulated under the Commerce Clause. And everyone at the time was like, that's the dumbest thing I've ever heard. And it's fantastic that we're now a couple years later and the argument. We've heard something dumber. Yeah. Paying for your house, not economic activity. Right.

So maybe now we can switch to the preview of the case that we wanted to discuss, which is Brnovich versus DNC slash Republican Party of Arizona versus DNC. And this is a case actually about enforcing the Voting Rights Act, which is why I am enthusiastic to have fellow Voting Rights Act enthusiasts with me on the show today. So maybe we can do some background on the Voting Rights Act and an explanation of the Arizona laws in the case before we actually get into what the question is that the court is going to address. So the Voting Rights Act, where to start? Okay, the Supreme Court defanged the Section 5 preclearance regime, which was really the crown jewel of the Voting Rights Act in the 2013 decision Shelby County

versus Holder. The preclearance regime had required certain states with particularly poor histories of racial discrimination in voting to obtain preclearance, that is federal permission, before enacting any changes to their voting laws or procedures. After the court basically cut the legs out from under Section 5, what remained of the Voting Rights Act was Section 2. And Section 2 prohibits of its own force those voting laws and policies that discriminate on the basis of race. And included in that prohibition are facially neutral laws, that is, laws that don't explicitly mention race, that result in selective disadvantages on the basis of race.

This is sometimes known as a disparate impact standard rather than an intentional discrimination standard, so laws that result in disadvantages even if not intentionally. And the statute was actually amended to include this standard, the disparate impact standard, after the Supreme Court's decision in City of Mobile. So the question here is basically, what kinds of laws or policies does the Voting Rights Act prohibit because they have the effect of selectively disadvantaging voters on the basis of race or color. The two laws at issue here, the first one prohibits counting provisional ballots that were accidentally cast in the wrong precinct. So if you're a voter and you decide to vote on election day as opposed to early or by

mail and you show up to the wrong spot, your ballot gets thrown out. This policy has a disproportionately adverse impact on voters who live in urban areas where polling locations change frequently. Non-white voters tend to vote outside their designated precincts about twice as frequently as white voters. There's a great quote from the Ninth Circuit below who says that finding your way to your polling place in Phoenix is like, quote, the changing stairways at Hogwarts constantly moving and sending everyone in the wrong place. And then your second law prohibits the collection of ballots by most people who aren't the person actually casting the votes. It's sometimes, I think, pejoratively called ballot harvesting,

the collection of these by community groups, political parties, campaigns, volunteer organizations. So this law also has a significant impact on different groups. So there's a finding in the lower court that outside of Arizona's two most populous counties, Native voters, less than a fifth of them have access to home mail service, and they may need to travel up to two hours just to get to the nearest mailbox. So both of these laws make it more difficult for people of color to participate in democracy, which is why the conservatives and the Republicans are so excited about them. So in the course of deciding whether those two Arizona laws violate the Voting Rights Act, the bigger question that the Supreme Court is going to be answering is,

you know, what kinds of laws actually violate Section 2? That is like, what do you have to prove in order to establish that a law results in disadvantages on the basis of race or color. So one argument that Arizona is advancing is that state laws have to result in a substantial disparity rather than just a mere disparity in order to implicate or violate Section 2. And Arizona says there's no substantial disparity here because the laws only affect a few thousand voters.

You can discriminate against people as long as there aren't that many people. You can be racist, but just not like too racist. Right. Only if there are a few thousand of them. In addition to concerns about, you know, tolerating some degree of, again, like making it harder for voters of color to participate in democracy. It's also the case that some laws with, you know, relatively small effect can be quite consequential. You know, the margin of victory in some of these states will be something like 10,000 or so votes. So you put one of these laws on the books, you put another one of these laws on the books, and then all of a sudden, you determine the outcome of the popular vote in a state. And given how the Electoral College works, you know, that could also decide the fate of a national election on top of statewide races, especially in a place like Arizona, right? I mean, that's an important state. I mean, I'm in

Georgia, right? And we were down to the wire in the 2020 election. And I don't think it's an exaggeration to say that the only reason Georgia went blue is because there was a concerted effort over a decade of ensuring that people of color had access to the polls, which still isn't much to write home about their access, but it's better than maybe it was in the past. I mean, a few thousand voters is is huge. That's still an embarrassment to democracy if you are making it, you know, so burdensome or excluding a few thousand voters from voting in an election. Like that's not how democracy is supposed to work. And even in the most sort of cynical cost benefit analysis, like the allegations about voter fraud, the proven in any sort of instances that it's been proven, it's never a couple thousand votes. It's maybe a couple people, whatever, wandering into a precinct and voting twice. the Republicans place so much emphasis here because basically it argues that, as we've said,

it doesn't affect that many people, so it can't be illegal. And the number in the 2016 election of ballots that got tossed as a result of being out of precinct was like three or four thousand, something like that. And they say it would be too difficult for us to count those ballots. But like, I don't think you can really have it both ways here. If it doesn't affect that many people, why not just count the votes? Like, again, if you're, if you asked anyone who's not a lawyer, what's a better fix for this problem that as you've conceded, affects a de minimis amount of people? Is it better to take the time to count those? Or is it better to be like, sorry, you're not in this election? Like, that's the right thing to do is Arizona had about two and a half million votes cast in its 2016 presidential election. It takes days, weeks

now to count votes in a presidential election. Who cares? Take the time, get it right. And it's really part of this, in my view, like this broader tenant of the conservative movement, which is that democracy is like kind of inconvenient for them. They feel like they are the ones who should be in power. And elections are just sort of this like hurdle that they have to clear in order to stay that way. It really is very toddler logic, like this is too hard, but I want the reward for doing it. You know, even a slight examination, it doesn't add up and it really is only um explained by like you said wanting to leave people out of the franchise which by the way is this is not a deviation from any sort of american tradition right what we're talking about with the voting rights act is of 50 years old there was actually a beautiful

essay in the atlantic this week by van newkirk about the fact that his mother recently passed away and she was born the year the Voting Rights Act was passed. And she was in her 50s when she died, right? Like, what we're seeing is this is the American tradition, not democracy, but disenfranchisement while pretending to care about democracy. And we seem to be inching closer and closer back to what that looked like at its worst moments. I think it's worth mentioning that the Arizona GOP has the single craziest social media accounts on earth. Like full QAnon. That's saying something.

That is really saying something. It's really bad. I mean, it's like very like a lot of conspiracies, a lot of QAnon, a lot of like it. It's just not surprising and makes it even more concerning that these are the people who, you know, have some sort of political power in the state, significant political power in the state. And there is no question what they're going to do when given the opportunity to disenfranchise

voters. Yeah, these are the people that censored Cindy McCain, Jeff Flake, and so on, you know, for Danning to suggest that maybe we should elect the person who didn't incite an insurrectionist mob to storm the Capitol. Oh, my gosh, I forgot. They were like, you can't be part of our club anymore. They were like, we don't care. School, whatever, man. Another argument that they're advancing as to what the Voting Rights Act could mean is what some people have started calling the equal opportunity theory. Under this theory, a state law or policy doesn't violate Section 2 so long as the state affords all voters the theoretical equal opportunity to vote. That is, a state can end voting practices that are used by a greater number of voters of color so long as it provides an alternative voting procedure that is, again, theoretically available to anyone.

So let's say, for example, more voters of color use early voting or mail voting. Under this theory, a state could end all early voting, all mail voting, and the Voting Rights Act would have nothing to say about that because those voters could, again, still vote in person. And this is the equal opportunity theory that, you know, the state Republican Party is advancing. So how far would that go? I mean, could that go to only having two polling places in the state? And if you have to drive three hours, you can still vote? I mean, I'm not a big slippery slope argument fan, but that one feels real, real messy. Yeah, I mean, this one, again, like taken to its conclusion is a state can eliminate all alternative forms of voting besides in person

voting. And that's just nonsensical, given what we know about, you know, different groups using different kinds of voting, you know, eliminating voting procedures or policies that are disproportionately used by certain groups is, again, just kind of an embarrassment to democracy. Like, why would you make voting harder, particularly for particular groups? Like, that seems exactly like the kind of thing the Voting Rights Act was designed to remedy. Not to be outdone, we have the real enforcing the Voting Rights Act enthusiasts, a group of Republican senators led by Ted Cruz and 10 other Republican senators, including Senate Minority Leader Mitch McConnell. I love the way that sounds. They are arguing that Section 2, if it actually prohibits state laws that result in disparate impacts on voters of color or any meaningful disparate impact standard, would be unconstitutional. This argument sounds outlandish, but this is an argument that came close to succeeding at the Supreme Court almost a decade ago in the context of a different disparate impact statute.

So in Ricci versus DiStefano, the court was asked to essentially decide whether a federal statute prohibiting employment policies with a disparate impact violated the Equal Protection Clause of the Constitution because it required employers to take race into account when deciding what employment laws or policies to pursue. And a majority of the Supreme Court kind of ducked the question in an opinion by Justice Kennedy. Justice Scalia wrote separately to say, you know, someday we're going to be forced to confront whether statutes that prohibit disparate impact liability are actually constitutional. And the issue, again, kind of went away when Justice Kennedy wrote this Fair Housing Act opinion saying the Fair Housing Act prohibits policies with a disparate impact. But now with

a different majority, you know, the idea that disparate impact liability is unconstitutional is kind of back on the table as far as an argument that might attract some Supreme Court justices. And so, I mean, this brief sounds kind of out there. But, you know, as we were talking about when we were suggesting in some corners of the internet slash article three, evictions aren't economic activity. Like stranger things have happened. Look, if anyone can make that argument with a straight face, Ted Cruz, Cancun. I'm so sorry. I saw your face really excited to say something.

I was like, I wonder what point Jay's gonna make. And it was the worst joke ever. But will he take snowflake with him? If he argues the case? We'll have to wait to find out. I know. I know. Okay, so another question in the case is about whether these Arizona laws intentionally discriminate on the basis of race or color. So some ads in support of the bill included one that was put together by a Maricopa County GOP official who managed to generate this ominous looking surveillance footage of a man who appeared to be Hispanic. And the ad called him a thug. And this man was stuffing a ballot box with illegal votes. And of course, the rationale for this law was that it's necessary to prevent voter fraud, despite there being no evidence that voter fraud exists in

ballot collection. And you know, that has never really taken place in the state. So that's another that even if the lawmakers who voted to pass this bill barring ballot harvesting, even if they were wrong, that it was necessary to prevent voter fraud, as long as they believed it in good faith, it can't violate the Voting Rights Act. And that is precisely the rationale that Republicans are trotting out in the aftermath of the 2021 election for these new voter suppression bills. And it's just a really easy sort of pattern cycle to follow, right? Trump says the election is stolen. People who voted for him worry about voter fraud. And then Republicans say, well, my constituents are so concerned about this. We have to address this. So in Georgia, the quote is we need to restore confidence in the ballot box. I'm quoting from Republican lawmakers here. In Pennsylvania, they say thousands of constituents have shared with us their concerns regarding the 2020 general election, so on. And it's this sort of rhetorical sleight of hand that cloaks the same old voter suppression

agenda in the trappings of this anodyne sounding election integrity movement. And my concern is that the court is basically being asked here to bless the precise rationale that's being offered in favor of this legislation. This has been going on, I mean, especially in this form, right, for years where there has literally been a major controversy or major wrongdoing invented in thin air. You know, voter fraud, the fact that it takes up as much space as it does in the political sphere is completely illogical, given that it's not even a thing. Now this is turbocharged, but we've long seen Republican politicians intimate about voter fraud and then say they need to pass stricter laws because this is something that people care about. They only care about because you brought it up. This is your fault. I think it's also just another reminder of who they care about when they say election integrity, and trust, because actually passing these laws just reinforces a long history of people of color, especially black people, not trusting that the democratic system is supposed to work in their favor because it's not.

There are very few black communities where you go to where people are like, you know, really feel like their vote matters is being counted and it's easy to cast. But that's not actually concerning to these politicians. What's concerning is that their people are worried about it. Yeah. It's sad because in some ways, like, it's a larger cycle and phenomenon about exactly what we saw with the 2020 election and specifically, you know, on January 6th when Congress meant to certify it, which is, you know, the various senators and representatives who objected to the election said, well, there are concerns about the election, but there were concerns because they said there were concerns, right? So like they generated the basis for the objections what culminated in the attack on the Capitol and, you know, all of the problems that resulted. And, you know, this is what is happening on the state

level and has been happening on the state level with respect to voter fraud as well. I gotta say, it's kind of like a great tactic. I'm gonna like use this in my household. I'm like, we should watch Legally Blonde again. And I'm like, everybody is saying we should watch Legally Blonde again. So I just feel like I've heard a lot about Legally Blonde again. And I'm like, everybody is saying we should watch Legally Blonde again. So I just feel like I've heard a lot about Legally Blonde lately. So I feel like we really need to watch it again. I mean, just generating your own controversy and then responding to it. Well, I mean, you're joking about this. But like, more seriously, going back to something we were talking about earlier in the episode, qualified immunity, you know, that's kind of what we're suggesting may have happened with the Supreme Court's attention to actually policing the accesses of qualified immunity, which is many people

started saying many people are concerned with qualified immunity and what this means about the accountability or lack thereof of police officers. And then all of a sudden, you know, that concern started to resonate, you know, with the people it needed to resonate with and something happened. So, you know, this power shouldn't be abused, of course, and like made to have our democracy be made worse. But, you know, this is something that does seem to work on some level. That's why tweeting works, children. Yeah, exactly. I'm also thinking about earlier when we were discussing in the evictions, the distinction between criminal possession of real property versus what are we talking about here, losing your house. And this is a really prominent feature of issues like voting rights within the conservative legal movement is obfuscating the intent by really dealing in abstractions. So when Chief Justice Roberts was a lawyer in the Reagan administration,

he couched his opposition to the Section 2 effects tests by arguing that the violations, quote, provide a basis for the most intrusive interference imaginable by federal courts into state and local processes. And even today, you'll hear this argument that what's really at issue here is federalism, the proper delineation of responsibilities between state and federal governments. But like all due respect to you, Leah, no one outside like the very upper echelons of academia and the legal profession care about federalism, right? What they care about is, is my vote getting counted? Or are my elected officials reaching over backwards to throw my votes out? It values process. Have you talked to diners in Pennsylvania, Jay? I'm pretty sure

what they care about. They're like, you know, democracy is important, but it's just actually much more important to me that the federal government stay out of this one. Local control. Local control. Right, right, right. Spheres of sovereignty. Take that to the ballot box. Right. It just values process over substance. And because the substance, which is, again, disenfranchising people and particularly people of color is not popular. So you have to make it about something that sounds good or at the very least too boring to care about because your actual position does not have popular support.

Right. So anything else on Brnovich? My opinion is that it's bad. Not a fan. J for the Supreme Court. Okay. So as I noted in the introduction, we also wanted to talk about a cluster of cases It's not a thing. J for the Supreme Court. Okay, so as I noted in the introduction, we also wanted to talk about a cluster of cases that the Supreme Court is hearing this term that touch on the Fourth Amendment and about policing rights in the home or protections past week, Lang v. California, and that case is about whether a police officer can follow someone into their home without a warrant simply because that person committed a misdemeanor, they're a noise infraction, and the police were in pursuit of them. I mean, obviously, Fourth Amendment doctrine just generally is kind of a mess and very screwy. And

it just, this reemphasizes, right, I mean, to Jay's point about federalism, it reemphasizes when the justices are focused on principle and when they're not. Overall, these might be important questions, the felony versus misdemeanor, the violent versus nonviolent or hot pursuit, or I mean, all of these, it's not that the variables are completely irrelevant, but just that the fact that whether or not someone has Fourth Amendment protection so closely turns on these very thin lines that actually aren't clearly defined anyway is, I think, symbolic to me. lie on principle and values and when they're not you know you don't hear robert's talking about federalism now government intervention now and it's somewhat you know the cops coming into um you know in the same way that he's talking about federalism in the voting rights case and i just think it highlights once again and we see this all the time in criminal justice policy you know

you have these rights except when they're inconvenient for us, or except when we think that those rights are worth trampling in this exact moment because of, you know, what we see at a glimpse. So the other Fourth Amendment case that the court will hear in the March sitting is Coniglia v. Strom. And it's about whether what's known as the community caretaking exception to the Fourth Amendment's warrant requirement extends to the home. So this community caretaking exception to the Fourth Amendment's warrant requirement extends to the home. So this community caretaking doctrine, the court created it in 1973 to give cops basically leeway conducting warrantless searches while performing what the court called community caretaking duties. So things that cops do that aren't related to investigating or solving crimes. So the archetypical example here

is a car that gets in an accident. It needs to be towed and maybe the police officer happens upon it and he gets out and as this car is getting ready to be impounded, he just does a check to see what's in there. This is relevant, of course, because in the 1973 case, Katie v. Dombrowski, such a search of a car turned up evidence of, let's say, very much criminal in nature homicide. So since that Katie decision, courts have expanded that doctrine, let's say, well beyond the context of broken down cars. And they do so because, as we all know, police in this country are charged not only with ostensibly stopping crime, but also with doing a whole bunch of other stuff. So judges have extended the community caretaking doctrine to officers conducting checks on noise complaints, performing wellness checks, breaking up parties, helping overdose victims, even assisting people in the midst of mental health crises or substance abuse crises.

And so the specific facts of this case are, I think, just interesting to know. A husband and a wife of 27 years, the husband is in his 60s, have an argument in which the husband gets out his gun and says, well, why don't you just shoot me and get me out of my misery? The wife spends the night in a motel, calls her husband the next day. The husband doesn't answer. And so she calls the police to do a wellness check. And, you know, that is a community caretaking function that doesn't involve, you know, the investigation of a crime. So the officers go to the house, get the husband to go to the hospital

and call the fire department, enter the home to do an inspection and seize the husband's guns. So, you know, this notion that like the police perform all these different functions is, I think, interesting and important. But I think the reality is, as this case kind of illustrates, and even the Katie Casey reference illustrates, like, there is no perfect dichotomy between these community caretaking functions and the investigation of crime. Like, many times investigating a crime could also plausibly involve a community caretaking function, right? Protecting someone from harm, right? Or doing a wellness check, or, you know, whatever the cases you want to make,

you know, investigating some kind of nuisance in a neighborhood. Like, all of these things, you know, could ostensibly be community caretaking functions that also overlap with criminal activity. And if you're going to extend the exception this far, you are really going to be, again, blessing, you know, the collection of evidence without warrant, without probable cause, which is kind of like one of the basic protections that the Fourth Amendment has. You know, we'll see what happens in this case. You know, another interesting aspect to this particular case is just because it involves the collection of guns and this background idea about like, well, is the notion that the husband had a gun driving the wellness check and the police officers entry into the home, it has a Second Amendment angle that could influence the

justice's perception of the propriety of the police's activities. And if they don't think, you know, what's like legitimate or fair for the police to be additionally skeptical because he is a gun owner, you know, perhaps that could convince them to limit the community caretaking exception, at least in this case, and potentially adopt a general rule to do so. You know, I think what this also highlights, two things it highlights. One is that when we talk about shifting the role of police and having police at the very least focus on what we all imagine to be police work right investigating crimes addressing you know quote-unquote criminal activity there's often a lot of pushback to that

idea and it's important to remember that one that police are incentivized to do work far outside of the scope of what we would find reasonable for many reasons. But one of them is stuff like this, right? Doing the work that ostensibly is supposed to help a community also gives you the ability to bypass some other regulations that you would otherwise have to follow. I think it also is a reminder that, and to shift policing, we also have to remember that the current structure of policing is also bad for police, right? It's not actually good that we are requiring this body of professionals to work so far out of their realm of expertise often.

And just because we know that what they're doing could lead to information about criminal activity, to your point, Leah. I mean, I think that that as a standard is so expansive and used so much by police. You hear it all the time with the death penalty. Well, we need the death penalty because we need it to incentivize people to give us information, or we need to violate people's rights or violate our own professional standards because that helps us solve crimes. And that is actually not the standard we want our police force to be following. This is not actually how we want our police themselves think about policing. Yeah. And I also worry that the community caretaking exception could create an incentive

for police to act outside the scope of their expertise, right? Like if police start claiming, well, we're doing more wellness check or performing, I don't know, like mental health care services, rather than investigating a crime, you know, then that would lead them, right, to be able to justify the collection of evidence if they're performing this community caretaking exception. But performing those functions also puts the police in these situations that they are not equipped to handle, right? Like they have not been trained to actually perform and provide social services to people with mental disabilities. Like a lot of the excessive force cases, you know, in the courts of appeals that involve very grotesque facts,

you know, involve people with mental illnesses who the police are called to respond to, and they respond with force, sometimes lethal force. So this community caretaking exception just involves this really potentially, I think, toxic combination between extremely expansive criminal laws, for which you might always be able to find some evidence, as well as an ever-expanding scope of police functions for which the police might not be adequately trained. And if the Supreme Court, again, blesses this use of the community caretaking exception, they are potentially creating incentives to expand it even further.

To be clear, I mean, that is what most of policing, maybe not most, but a significant chunk of policing looks like today. I think the biggest chunk of policing is traffic enforcement, right? But then after that, it is functionally this kind of community caretaking stuff. It is nonviolent emergencies. It is mental health crises, addiction. Police spend about 4% of their time dealing with violent crime, right? And there is this sort of irony in this idea of, well, we need to continue to do this community caretaking because it allows us to investigate violent crime instead of actually just dealing with crime. Pretty much any city you go to, the homicide solve rates hovering around 50%. And yet, we're arguing about whether or not police should be handling people in a mental health crisis. It's just so clearly that this is not the role for them. And like you said, they also just tend to exacerbate situations like this.

When in a spousal argument, you know, where someone is suicidal, I don't think it reduces anxiety to see the cops show up. Right. That's not usually seeing the cops does not calm you down. And what we find is that they are in these situations, not only ill-equipped to handle them, but even if they were trained, they're the wrong person for the job. I'm just thinking right now about being one of Alita's clerks and being like, gun rights, enabling cops, oh no, what to do. The struggle is real. Yeah. And speaking of struggling, I think one of the reasons courts have such a hard time grappling with the outer limits of this doctrine is because they're sort of asking the wrong question, which is, why do we have cops do all this stuff in the first place? And then cities across the

country right now, they're trying pilot programs. There's a great one in Denver, I believe, where they're dispatching non-armed emergency first responders to deal with things like mental health crises, substance use issues. That person who goes to check on somebody, they don't need to have a gun and they certainly don't need to be a police officer. They need to be an expert in those types of crises. Now, like a Supreme Court opinion that limits community caretaking doctrine, it's not like it's going to solve the issue of police funding or divestment overnight, but just the more rationales they have at their disposal to ignore the Fourth Amendment's limitations, the more often they'll

do so. And when we talk about the debate over police funding, police divestment, like many bureaucracies, police departments sort of behave like gas. They expand to fill the roles that have been given to them. So you have decades of chronic underinvestment in mental health care and substance abuse treatment, for example, have left police as sort of the default crisis first responder, which in turns lead to bloated and ever-increasing police budgets that make it difficult for cities and states to step back and address those chronic underinvestments that drain police resources, as Josie said earlier, in the first place. The policing crisis we have right now is indicative of a combination of uniquely American social problems. The fact that we often divest from social services on the front end, and we

expect the back end systems to fix that. The fact that we rely on the criminal justice system to address as an individual fault for addressing systemic problems. But also, it's yet another example of the austerity crisis that has gripped states and localities for decades, and especially, I think, since the 2008 recession, where you see a deep unwillingness to fund social services that aren't cops. And so in many communities, cops are not only the only thing that can get money, but also the ways that localities are making money through fees and fines with the cops. It's just, there is a deeper rot here that the Supreme Court actually can't address of why we rely on cops the way we do. It is so deep in kind of our ethos and overlaps with so many elements of how we think

about social problems in America, that it's not a policy solution. It's not a court ruling that's going to fix that. But having the court at least question the false premises of the construction of this profession, I think, would be ideal, would be valuable. It really is just outrageous that the whole idea of the Fourth Amendment is to say, you have some privacy from the government, but we're going to ask the government to do more things. And therefore, they get to take more of your privacy. It's like, I thought the whole point was that you guys were supposed to stay out of it. Also, I just love the idea of community caretaking as a term. Just so beautifully ironic.

It's so benign. It's so sweet. Right. It calls to mind they're like gardening, right? Like planting flowers. It reminds me of like one of my toddlers, like books. Just so absurd. There's like an implication of benevolence behind it almost. That is it. Absolutely. Police aren't taking care of their community. Like, you can't look at policing in this country right now and say, they're the ones who are keeping things in order. And nor should they, right? I mean, they don't need to be our community caretakers. I mean, that's not, I mean, they're not doing it and it shouldn't be their job.

And the fact that they're failing at it and we're still giving them more responsibility is It's just such a such a farce. I was going to give the example of last year when a hawk, a huge hawk flew through my bedroom window in the middle of the day. And when I called animal control. I'm so excited to see how this metaphor works. Oh, it works. When I called animal control, they were like, we don't do birds like call the cops. And when I called like private, you know, like a private specialist asking them to come remove this huge bird, we don't, I guess, call the cops, call the fire department and maybe call the cops. And it's like, the cops don't know what to do with a hawk. But, you know, if there's a wild bird, there's a wild bird in my house and animal control is like, oh, we don't do that.

But maybe the cops, it's like literally that doesn't feel right for anybody. It doesn't feel right for me. It doesn't feel right for animal control. And I'll tell you, it probably doesn't feel right for the cop who has to show up to my house and maybe try to remove the bird. And it's just I think it really just just underscores how it's the fallback for everything. Right. And that's because we really do treat the police, as you were saying, the fallback, like the social safety net as well, right? Like we don't have meaningful welfare programs. We send people with mental health issues, people who are poor, right? Like these are the people that end up in jails and prisons. And it's because we have just become accustomed to using the police as kind of like the fallback system. Absolutely. The good news is it's a really heartwarming story how, Josie, you've accepted the hawk as a member of your family now for over a year. It's true.

He still lives here. No, he flew out eventually and it took another day for the squirrel that came in after the hawk to get out. It was a whole lot. It was a huge situation. I cried multiple times. Okay. But.

Is there any chance we were it was a huge situation i cried multiple times okay but is there any chance we were talking about a chase situation like the hawk chased the squirrel in and the squirrel was taking refuge that's exactly what happened the squirrel was on the on the windowsill the hawk dove down to get the squirrel came into the room the squirrel stayed we had to go by a pool net and like drag the squirrel out my My dad got involved. It was just really, it was really a rough, a rough experience. And I'm still milking it for all I can out of everybody in my house, how I was traumatized during the hawk. I'm pretty sure that like catching squirrels and hawks in your home is somehow necessary to enforce the Voting Rights

Act. Either you should have social services to get the hawk out of my house or you should let me vote. I can't, you can't not let me have either. That feels unfair. These are the choices. Right, exactly. Thanks everyone for listening. Thank you to Josie and to Jay for guest hosting with me.

Thank you so much for having us. Thanks so much, Liet. Thanks as always to Papa Appeal slash Mama Appeal. I'm not quite sure what the right terminology is. Thanks to our producer, Melody Rowell. Thanks to Eddie Cooper, who does our music. And if you want to see or hear people yell at me, Leah, about my hair, smile, and or voice, please follow us on TikTok at Strict Scrutiny Podcast. I'm very excited about following you guys on TikTok.